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ISSIPPI CODE 1972 

Annotated 



Trusts and Estates ; 
Domestic Relations 
Tbrts 



Titles 91 to 95 



WjB 



TABLE OF CONTENTS 

VOLUME 20 



TITLE 91 
TRUSTS AND ESTATES 

Chap. Beginning 

No. Section 

I . Descent and Distribution 91-1-1 

3. Uniform and Simultaneous Death Law 91-3-1 

5. Wills and Testaments 91-5-1 

7. Executors and Administrators 91-7-1 

9. Trusts and Trustees 91-9-1 

II. Fiduciary Security Transfers 91-11-1 

13. Fiduciary Investments 91-13-1 

15. Release of Powers of Appointment 91-15-1 

17. Uniform Principal and Income Law 91-17-1 

19. Gifts to Minors. [Repealed] 91-19-1 

20. Transfers to Minors 91-20-1 

21. Uniform Transfer-on-Death Security Registration Act 91-21-1 

TITLE 93 
DOMESTIC RELATIONS 

I. Marriage 93-1-1 

3. Husband and Wife 93-3-1 

5. Divorce and Alimony 93-5-1 

7. Annulment of Marriage 93-7-1 

9. Bastardy 93-9-1 

I I . Enforcement of Support of Dependents 93-1 1-1 

12. Enforcement of Child Support Orders from Foreign 

Jurisdictions 93-12-1 

13. Guardians and Conservators 93-13-1 

15. Termination of Rights of Unfit Parents 93-15-1 

16. Grandparents' Visitation Rights 

17. Adoption, Change of Name, and Legitimation of 

Children 93-17-1 

19. Removal of Disability of Minority 93-19-1 

21 . Protection from Domestic Abuse 93-21-1 

22. Uniform Interstate Enforcement of Domestic Violence 

Protective Orders 93-22-1 

23. Uniform Child Custody Jurisdiction Act Repealed 

25. Uniform Interstate Family Support Act 93-25-1 

27. Uniform Child Custody Jurisdiction and Enforcement Act . . 93-27-101 



TITLE 95 
TORTS 

Chap. Beginning 

No. Section 

I. Libel and Slander 95-1-1 

3. Nuisances 95-3-1 

5. Trespass 95-7-1 

7. Liability Exemption for Donors of Food 95-9-1 

9. Liability Exemption for Volunteers and Sports Officials .... 95-11-1 

I I . Liability Exemption for Equine and Livestock 

Activities 95-1 1-1 

13. Liability Exemption for Noise Pollution by Sport-shooting 

Ranges 95-1 3-1 



533-011 (1993) 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/govlawmscode197220 



MISSISSIPPI CODE 
1972 



ANNOTATED 

ADOPTED AS THE OFFICIAL CODE OF THE 

STATE OF MISSISSIPPI 

BY THE 

1972 SESSION OF THE LEGISLATURE 



VOLUME TWENTY 

TRUSTS AND ESTATES 

DOMESTIC RELATIONS 

TORTS 

§§ 91-1-1 to 95-13-1 



CONTAINING PERMANENT PUBLIC STATUTES OF MISSISSIPPI 

TO THE END OF THE 2004 REGULAR AND 

1ST AND 2ND EXTRAORDINARY LEGISLATIVE SESSIONS 




LexisNexis 



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Copyright © 1973—2004 

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4456811 

ISBN 0-327-0462 1-X (Volume 20) 
ISBN 0-327-09628-4 (Code set) 




LexisNexis 



Matthew Bender & Company, Inc. 
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(Pub.44510) 



PREFACE 

The Mississippi Code of 1972, which became effective on November 1, 
1973, is the culmination of nearly four years of effort on the part of the 
Legislature, the Attorney General's office and the publishers, which brings 
together provisions of general statutory law having a common subject matter 
into a more orderly and logical framework of code titles and chapters, and 
employing a modern and effective section numbering system. A major by- 
product of the code revision will be the state-owned magnetic computer tape 
containing the Mississippi Code of 1972, which will be of invaluable assistance 
to the Legislature and to the state. 

The enabling act for the code was a recommendation of the Mississippi 
State Bar, which resulted in the consideration and passage of Senate Bill 1964, 
Chapter 465, Laws of 1970, signed into law by Governor John Bell Williams. 

The Code Committee provided for in that act was comprised of A. F. 
Summer, Attorney General, Heber Ladner, Secretary of State, Representative 
Edgar J. Stephens, Jr., Chairman, House Appropriations Committee, Senator 
William G. Burgin, Jr., Chairman, Senate Appropriations Committee, Repre- 
sentative H. L. Meredith, Jr., Chairman, House Judiciary "A" and Judiciary en 
banc Committees, Senator E. K. Collins, Chairman, Senate Judiciary "A" and 
Judiciary en banc Committees, Representative Ney McKinley Gore, Jr., 
Chairman, House Judiciary "B" Committee, and Senator William E. Alexander, 
Chairman, Senate Judiciary "B" Committee. In 1972, Representative Marby 
Robert Penton and Senator Herman B. Decell, Chairman of House and Senate 
Judiciary "B" Committees, respectively, became members of the Committee, 
replacing Representative Gore and Senator Collins, Senator Alexander having 
been appointed Chairman of Senate Judiciary "A" and Judiciary en banc 
Committees. The Deputy Attorney General, Delos H. Burks, served the Code 
Committee as Secretary. Special Assistant Attorney General Fred J. Lotterhos, 
under the supervision of the Attorney General, was assigned the principal 
responsibility for the supervision of the recodification, including the consider- 
ation and treatment of some 16,000 sections of code manuscript. 

Final legislative approval was given to the Mississippi Code of 1972 by 
passage of Senate Bill 2034, Laws of 1972, which was signed by Governor 
William L. Waller on April 26, 1972. A copy of that act is set out in Volume 1, 
following the Publisher's Foreword. 

The Code Committee is of the opinion that the recodification has been 
thoroughly and well accomplished, and will result in a greatly improved 
repository of the general statutory law of the state. 

A. F. Summer 
Attorney General 



hi 



PUBLISHER'S FOREWORD 

This 2004 Replacement Volume 20 of the Mississippi Code of 1972 
Annotated represents material appearing in both the original 1973 bound 
volume and the 1994 Replacement Volume 20, as well as reflecting amend- 
ments, repeals, and new Code provisions enacted by the Mississippi Legisla- 
ture through the 2004 Regular and 1st and 2nd Extraordinary Legislative 
Sessions. 

This volume contains the text of Titles 91 through 95, of the Mississippi 
Code of 1972 Annotated, as amended through the 2004 Regular and 1st and 
2nd Extraordinary Legislative Sessions. 

Case annotations are included based on decisions of the State and federal 
courts in cases arising in Mississippi. Many of these cases were decided under 
the former statutes in effect prior to the enactment of the Code of 1972. These 
earlier cases have been moved to pertinent sections of the Code where they 
may be useful in interpreting the current statutes. Annotations to collateral 
research references are also included. 

To better serve our customers by making our annotations more current, 
LexisNexis has changed the sources that are read to create annotations for this 
publication. Rather than waiting for cases to appear in printed reporters, we 
now read court decisions as they are released by the courts. A consequence of 
this more current reading of cases, as they are posted online on LexisNexis, is 
that the most recent cases annotated may not yet have print reporter citations. 
These will be provided, as they become available, through later publications. 

This publication contains annotations taken from decisions of the Missis- 
sippi Supreme Court and the Court of Appeals with decision dates up to April 
27, 2004, and decisions of the appropriate federal courts with decision dates up 
to April 22, 2004. These cases will be printed in the following reporters: 

Southern Reporter, 2nd Series 

United States Supreme Court Reports 

Supreme Court Reporter 

United States Supreme Court Reports, Lawyers' Edition, 2nd Series 

Federal Reporter, 3rd Series 

Federal Supplement, 2nd Series 

Federal Rules Decisions 

Bankruptcy Reporter 

Additionally, annotations have been taken from the following sources: 

American Law Reports, 5th Series: through 117 A.L.R.5th 
American Law Reports, Federal Series: through 192 A.L.R.Fed 
Mississippi College Law Review: through 20 Miss. Coll. L.R. 211. 
Mississippi Law Journal: through 72 Miss. L.J. 1029 

Finally, published Opinions of the Attorney General and opinions of the 
Ethics Commission have been examined for annotations. 

A comprehensive Index appears at the end of this volume. 



Publisher's Foreword 

Visit the LexisNexis website at http://www.lexisnexis.com for an online 
bookstore, technical support, customer support, and other company informa- 
tion. 

For further information or assistance, please call us toll-free at (800) 
833-9844, fax us toll-free at (800) 643-1280, e-mail us at 
customer.support@bender.com, or write to: Mississippi Code Editor, 
LexisNexis, P.O. Box 7587, Charlottesville, VA 22906-7587. 

September 2004 LexisNexis 



VI 



User's Guide 

This guide is designed to help both the lawyer and the layperson get the 
most out of the Mississippi Code of 1972 Annotated. Information about key 
features of the Code and suggestions for its more effective use are given under 
the following headings: 

— Advance Code Service 

— Advance Sheets 

— Amendment Notes 

— Analyses 

— Attorney General Opinions 

— Code Status 

— Comparable Legislation from other States 

— Court Rules 

— Cross References 

— Editor's Notes 

— Effective Dates 

— Federal Aspects 

— Index 

— Joint Legislative Committee Notes 

— Judicial Decisions 

— Organization and Numbering System 

— Placement of Notes 

— Replacement Volumes 

— Research and Practice References 

— Source Notes 

— Statute Headings 

— Tables 

If you have a question not addressed by the User's Guide, or comments 
about your Code service, you may contact us by calling us toll-free at (800) 
833-9844, faxing us toll-free at (800) 643-1280, e-mailing us at 
customer.support@bender.com, or writing to Mississippi Code Editor, 
LexisNexis, P.O. Box 7587, Charlottesville, VA 22906-7587. 

ADVANCE CODE SERVICE 

Three times a year, at roughly quarterly intervals between delivery of 
Code supplement pocket parts, we publish the Mississippi Advance Code 
Service pamphlets. These pamphlets contain updated statutory material and 
annotations to Attorney General opinions, research and practice references, 
and recent court decisions construing the Code. Each pamphlet is cumulative, 
so that each is a "one-stop" source of case notes updating those in your Code 
bound volumes and pocket parts. 

ADVANCE SHEETS 

The Advance Sheets consist of a series of pamphlets issued in the spring. 
The series reproduces the acts passed by the Mississippi Legislature and 

vii 



User's Guide 

approved by the Governor during the legislative session. Features include 
tables showing the impact of legislation on sections of the Mississippi Code of 
1972 Annotated, and a cumulative index. These pamphlets enable the user to 
receive a preview of approved legislation prior to supplement availability, and 
serve as an excellent source of legislative history. 

AMENDMENT NOTES 

Every time a Code provision is amended, we prepare a note describing the 
effect of the amendment. By reading the note, you can ascertain the impact of 
the change without having to check the former statute itself. 

Amendment notes are retained in the Supplement until the bound volume 
is replaced, at which time notes from all but the last two years are deleted. 

ANALYSES 

Each title, chapter, and article appearing in a bound volume or supple- 
ment is preceded by an analysis. The analysis details the scope of the title, 
chapter, and article and enables you to see at a glance the content of the title, 
chapter, and article without resorting to a page-by-page examination in the 
bound volume or supplement. 

ATTORNEY GENERAL OPINIONS 

Opinions of the attorney general for the state of Mississippi have been 
read for constructions of Mississippi law. Notes describing the subject matter 
of the opinions have been placed under relevant code provisions under the 
heading "Attorney General Opinions." The citation at the end of each note 
refers to the person requesting the opinion, the date of the opinion, and the 
opinion number. 

CODE STATUS 

The Mississippi Code of 1972 Annotated is Mississippi's official code and is 
considered evidence of the statute law of the state of Mississippi (see § 1-1-8). 
The Code was enacted by Chapter 394 of the Laws of 1972, which was signed 
by the Governor on April 26, 1972. 

The text of Chapter 394 is printed in Volume 1, on the pages following the 
Publisher's Foreword. In addition, Title 1, Chapters 1 through 5 of the Code 
contain statutes governing the status and construction of the Code. 

COMPARABLE LEGISLATION 
FROM OTHER STATES 

Notes to comparable legislation from other states appear for uniform laws, 
interstate compacts, statutory provisions pertaining to reciprocity and cooper- 

viii 



User's Guide 

ation with other states, and various important statutes of general interest. 
Other states' statutes that are similar in subject matter and scope to those of 
Mississippi are cited, generally, under the first section of the chapter or article 
to which they pertain. Occasionally, comparable legislation pertains to only 
one section, in which case it is cited under that section rather than at the 
chapter or article level. 

See also Federal Aspects. 

COURT RULES 

The Mississippi Court Rules are published separately by LexisNexis in a 
fully annotated softcover volume which is replaced annually and supple- 
mented semi-annually. 

The Court Rules volume contains statewide rules of procedure of the state 
courts, the local rules of the United States district courts and bankruptcy 
courts for Mississippi, and the rules of the United States Court of Appeals for 
the Fifth Circuit. Rules are received from the courts and edited only for 
stylistic consistency. For further information, see the Preface to the Mississippi 
Court Rules volume. 

CROSS REFERENCES 

Cross references refer you to notes under other Code sections, that may 
affect a law or place it in context. Cross references also are used under repealed 
provisions to refer you to an existing law on a similar subject. Cross references 
do not cite all related statutes, however, since these can be identified by using 
the General Index. 

See also Comparable Legislation from other States and Federal Aspects. 

EDITOR'S NOTES 

Editor's notes are notes prepared by the Publisher that contain informa- 
tion about important or unusual features of a law, or special circumstances 
surrounding passage of the law, that are not apparent from the law's text. 

See also Effective Dates. 

EFFECTIVE DATES 

Absent a specific effective date provision within an act, Mississippi laws 
generally take effect upon approval date, which is the date the act is signed 
into law by the Governor. Acts affecting voting rights and procedures take 
effect on the date the United States Attorney General interposes no objection 
under § 5 of the Voting Right Act of 1965. 

FEDERAL ASPECTS 

Notes to federal legislation that is similar in subject matter and scope to 
the laws of Mississippi are referenced throughout the Code. In addition, the 

ix 



User's Guide 

Code contains the United States Code Service citation for any federal law that 
is referred to in a Mississippi statute by its popular name or by its session law 
designation. 

See also Comparable Legislation from other States. 

INDEX 

The Code is completely indexed in two softcover Index volumes, which are 
updated and replaced annually In addition, each volume of the Code is 
followed by its own index. As accurate and thorough as the Index is, your best 
defense against index wild goose chases is familiarity with indexing tech- 
niques. To that end, an explanatory Foreword to the Index appears in the first 
Index volume. 

JOINT LEGISLATIVE COMMITTEE NOTES 

Joint Legislative Committee notes are included in the Code to describe 
codification decisions made by the Mississippi Joint Legislative Committee on 
Compilation, Revision and Publication of Legislation. Examples of Committee 
actions that warrant the inclusion of a note are the integration of multiple 
amendments to a single Code section during the same legislative session, and 
the correction of typographical errors appearing in the Code. 

JUDICIAL DECISIONS 

Every reported case from the Supreme Court of Mississippi, the Court of 
Appeals of Mississippi, federal district courts for Mississippi, the federal Fifth 
Circuit Court of Appeals and the United States Supreme Court has been read 
for constructions of Mississippi law. These constructions are noted under 
pertinent sections of the statutes or Mississippi Constitution provisions, under 
the heading "Judicial Decisions." Where a decision has been reviewed by a 
higher court, subsequent judicial history and disposition is noted in the case 
note if such disposition has any bearing on the annotated material. Where two 
or more decisions state the same rule of law, the case citations are cumulated 
under one case note. 

Case notes are grouped together under headings called "catchlines." The 
catchlines identify the basic subject matter of the case notes and assist the user 
in locating pertinent notes. Catchlines are numbered and arranged themati- 
cally, with "In general" first. Where there are two or more catchlines, an 
analysis, listing all the catchlines, precedes the annotations. 

Frequently, statutes carry notes to cases that arose under earlier laws on 
the same subject. Case notes are retained so long as the editor believes the note 
will have some relevance under current law, though of course the relevance 
may be diminished by later changes in the law. These case notes appear under 
the heading "Decisions under former law." 



User's Guide 
ORGANIZATION AND NUMBERING SYSTEM 

The Code is organized by titles, chapters, articles, subarticles, undesig- 
nated centered headings and sections. Analyses at the beginning of each title, 
chapter, article, and subarticle help you understand the internal arrangement 
of each Code unit (see Analyses). 

Odd numbers are generally used for the numbering of titles, chapters and 
sections. Even numbers have been used for some chapters and sections so that 
a particular new chapter or section might be logically placed with other 
chapters and sections dealing with the same or similar subject matter. 
Similarly, the use of numbers with decimal points has been used for some 
sections in order that they may be inserted among other sections pertaining to 
the same subject. 

The title, chapter, and section for each Code section is revealed by its 
section number. Thus, in the designation "§ 1-3-65," the first digit ("1") means 
the provision is in Title 1 ("Laws and Statutes"); the second ("3") indicates 
Chapter 3 ("Construction of Statutes"); and the last two digits ("65") mean the 
65th section in that chapter ("Construction of terms generally"). 

Articles and subarticles are not reflected by section number designations. 

Within sections, subsections and paragraphs usually are designated 
following this pattern: (l)(a)(i)l. or (l)(a)(i)A. A distinctive indention scheme is 
applied to suggest the relative value of each unit within this hierarchy. 

PLACEMENT OF NOTES 

Where a note pertains to a single statute section, it will of course be set out 
following that section. In many instances, however, a note applies equally to 
several statute section or to an entire chapter or article. If the pertinent 
sections are scattered, or few in number, the note will be duplicated for each 
section. But where the note applies to all or most of the sections in a chapter 
or article, we prevent the space-consuming repetition of notes by placing the 
note at the very beginning of the chapter or article. Look for these unit-wide 
notes between the title, chapter, or article analysis and the first section in that 
unit. 

REPLACEMENT VOLUMES 

The Code is periodically updated and streamlined by the replacement of 
volumes. Although a current set of the Code contains all currently applicable 
statutes, we encourage you to retain replaced volumes and their supplement 
pockets parts for historical reference. 

RESEARCH AND PRACTICE REFERENCES 

Citations to references in American Jurisprudence, American Jurispru- 
dence Pleading and Practice, American Jurisprudence Proof of Facts, Ameri- 

XI 



User's Guide 

can Jurisprudence Trials, American Law Reports, First through Fifth Series, 
ALR Federal, Corpus Juris Secundum, various other treatises and practice 
guides, and Mississippi law journals are given under this heading, wherever 
the references appear to discuss the statute under which the citation appears, 
or a topic related to the statute. These citations are intended only to give you 
a starting point for your library research. The Mississippi law journals include 
Mississippi Law Journal and Mississippi College Law Review. 

SOURCE NOTES 

Each section of the code is followed by a brief note showing the acts of the 
legislature on which it is based, including the act that originally enacted the 
section and any subsequent amendments. 

The source note follows the section text, preceding any other annotations 
for the section. Information in the source note is listed in chronological order, 
with the most recent information listed last. If a section has been renumbered, 
the former number will appear in the source note. References to comparable 
provisions in statutes also are listed. 

The tables volume should also be consulted when researching the history 
of a statutory section, since it contains cross reference tables that provide a 
statutory citation for each section of the session laws and the date each act 
went into effect. 

STATUTE HEADINGS 

Headings or "catchlines" for Code sections and subsections are generally 
created and maintained by the publisher. They are mere catchwords and are 
not to be deemed or taken as the official title of a section or as a part of the 
section. Your suggestions for the improvement of particular catchlines are 
invited. 

TABLES 

The Mississippi Code of 1972 Annotated contains several tables that can 
assist you in your research. These are published in the Statutory Tables 
volume of the Code, and include the following: 

• Sections of the Code of 1930 carried into the Code of 1942. 

• Sections of the Code of 1942 carried into the Code of 1972. 

• Allocation of Acts of Legislature, 1931 — 1972. 

• Allocation of Acts of Legislature, 1972 — present. 

• Consolidated Tables of amendments and repeals of 1942 Code sections. 

• Consolidated Tables of amendments and repeals of 1972 Code sections. 



xn 



GENERAL OUTLINE OF TITLES 
AND CHAPTERS 



Constitution of the United States 
Constitution of Mississippi 



Volume 1 
Volume 1 



Chapter 



TITLE 3. 

Chapter 



Chapter 



Chapter 



Chapter 



TITLE 1. LAWS AND STATUTES 

Beginning 
Section 

1. Codeofl972 1-1-1 

3. Construction of Statutes 1-3-1 

5. Session Laws and Journals 1-5-1 

STATE SOVEREIGNTY, JURISDICTION AND HOLIDAYS 

1. State Sovereignty Commission [Repealed] 3-1-1 

3. State Boundaries, Holidays, and State Emblems 3-3-1 
5. Acquisition of Land by United States 

Government 3-5-1 

TITLE 5. LEGISLATIVE DEPARTMENT 

1. Legislature 5-1-1 

3. Legislative Committees 5-3-1 

5. Interstate Cooperation 5-5-1 

7. Lobbying [Repealed] 5-7-1 

8. Lobbying Law Reform Act of 1994 5-8-1 

9. Agency Review 5-9-1 

11. Abolishment of Agencies 5-11-1 

TITLE 7. EXECUTIVE DEPARTMENT 

1. Governor 7-1-1 

3. Secretary of State 7-3-1 

5. Attorney General 7-5-1 

7. State Fiscal Officer; Department of Audit 7-7-1 

9. State Treasurer 7-9-1 

11. Secretary of State; Land Records 7-11-1 

13. Mississippi Administrative Reorganization Act 7-13-1 
15. Executive Branch Reorganization Study Com- 
mission [Repealed] 7-15-1 

17. Mississippi Executive Reorganization Act of 

1989 7-17-1 

TITLE 9. COURTS 

1. Provisions Common to Courts 9-1-1 



Xlll 



General Outline 

TITLE 9. COURTS (Cont'd) 

Beginning 
Section 

3. Supreme Court 9-3-1 

4. Court of Appeals of the State of Mississippi .... 9-4-1 

5. Chancery Courts 9-5-1 

7. Circuit Courts 9-7-1 

9. CountyCourts 9-9-1 

11. Justice Courts 9-11-1 

13. Court Reporters and Court Reporting 9-13-1 

15. Judicial Council [Repealed] 9-15-1 

17. Court Administrators 9-17-1 

19. Commission on Judicial Performance 9-19-1 

21. Administrative Office of Courts 9-21-1 

23. DrugCourts 9-23-1 

TITLE 11. CIVIL PRACTICE AND PROCEDURE 

Chapter 1. Practice and Procedure Provisions Common to 

Courts 11-1-1 

3. Practice and Procedure in Supreme Court 11-3-1 

5. Practice and Procedure in Chancery Courts .... 11-5-1 

7. Practice and Procedure in Circuit Courts 11-7-1 

9. Practice and Procedure in County Courts and 

Justice Courts 11-9-1 

11. Venue of Actions 11-11-1 

13. Injunctions 11-13-1 

15. Arbitration and Award 11-15-1 

17. Suits to Confirm Title or Interest and to Remove 

Clouds on Title 11-17-1 

19. Ejectment 11-19-1 

21. Partition of Property 11-21-1 

23. Trial of Right of Property 11-23-1 

25. Unlawful Entry and Detainer 11-25-1 

27. Eminent Domain 11-27-1 

29. Sequestration 11-29-1 

31. Attachment in Chancery Against Nonresident, 

Absent or Absconding Debtors 11-31-1 

33. Attachment at Law Against Debtors 11-33-1 

35. Garnishment 11-35-1 

37. Replevin 11-37-1 

38. Claim and Delivery 11-38-1 

39. Quo Warranto 11-39-1 

41. Mandamus; Prohibition 11-41-1 

43. Habeas Corpus 11-43-1 

45. Suits by and Against the State or Its Political 

Subdivisions 11-45-1 

xiv 



General Outline 

TITLE 11. CIVIL PRACTICE AND PROCEDURE (Cont'd) 

Beginning 
Section 

46. Immunity of State and Political Subdivisions 

From Liability and Suit for Torts and Torts of 

Employees 11-46-1 

47. Lis Pendens 11-47-1 

49. Rights and Duties of Attorneys, Generally 11-49-1 

51. Appeals 11-51-1 

53. Costs 11-53-1 

55. Litigation Accountability Act of 1988 11-55-1 

57. Structured Settlements 11-57-1 

TITLE 13. EVIDENCE, PROCESS AND JURIES 

Chapter 1. Evidence 13-1-1 

3. Process, Notice, and Publication 13-3-1 

5. Juries 13-5-1 

7. State Grand Jury Act 13-7-1 

TITLE 15. LIMITATIONS OF ACTIONS AND PREVENTION OF 

FRAUDS 

Chapter 1. Limitation of Actions 15-1-1 

3. Prevention of Frauds 15-3-1 

TITLE 17. LOCAL GOVERNMENT; PROVISIONS COMMON TO 
COUNTIES AND MUNICIPALITIES 

Chapter 1. Zoning, Planning and Subdivision Regulation . . 17-1-1 

3. Promotion of Trade, Conventions and Tourism 17-3-1 

5. Jails, Waterworks and Other Improvements .... 17-5-1 

7. Removal of Local Governments in Emergencies 17-7-1 
9. Lease of Mineral Lands other than Sixteenth 

Section or "In Lieu" Lands 17-9-1 

11. Gulf Regional District Law 17-11-1 

13. Interlocal Cooperation of Governmental Units 17-13-1 

15. Human Resource Agencies 17-15-1 

17. Solid Wastes Disposal 17-17-1 

18. Mississippi Hazardous Waste Facility Siting Act 

of 1990 17-18-1 

19. Appropriations to Planning and Development 

Districts 17-19-1 

21. Finance and Taxation 17-21-1 

23. Rural Fire Truck Acquisition Assistance 

Program 17-23-1 



xv 



General Outline 

TITLE 17. LOCAL GOVERNMENT; PROVISIONS COMMON TO 
COUNTIES AND MUNICIPALITIES (Cont'd) 

Beginning 
Section 
25. General Provisions Relating to Counties and 

Municipalities 17-25-1 

TITLE 19. COUNTIES AND COUNTY OFFICERS 

Chapter 1. County Boundaries 19-1-1 

2. County Government Reorganization Act 19-2-1 

3. Board of Supervisors 19-3-1 

4. County Administrator 19-4-1 

5. Health, Safety and Public Welfare 19-5-1 

7. Property and Facilities 19-7-1 

9. Finance and Taxation 19-9-1 

11. County Budget 19-11-1 

13. Contracts, Claims and Transaction of Business 

with Counties 19-13-1 

15. Records and Recording 19-15-1 

17. County Auditors 19-17-1 

19. Constables 19-19-1 

21. Coroners 19-21-1 

23. County Attorneys 19-23-1 

25. Sheriffs 19-25-1 

27. Surveyors and Surveys 19-27-1 

29. Local and Regional Railroad Authorities 19-29-1 

31. Public Improvement Districts 19-31-1 

TITLE 21. MUNICIPALITIES 

Chapter 1. Classification, Creation, Abolition, and 

Expansion 21-1-1 

3. Code Charters 21-3-1 

5. Commission Form of Government 21-5-1 

7. Council Form of Government 21-7-1 

8. Mayor-Council Form of Government 21-8-1 

9. Council-Manager Plan of Government 21-9-1 

11. Municipal Elections [Repealed] 21-11-1 

13. Ordinances 21-13-1 

15. Officers and Records 21-15-1 

17. General Powers 21-17-1 

19. Health, Safety, and Welfare 21-19-1 

21. Police and Police Departments 21-21-1 

23. Municipal Courts 21-23-1 

25. Fire Departments and Fire Districts 21-25-1 

27. Public Utilities and Transportation 21-27-1 



xvi 



General Outline 

TITLE 21. MUNICIPALITIES (Cont'd) 

Beginning 
Section 

29. Employees' Retirement and Disability Systems 21-29-1 

31. Civil Service 21-31-1 

33. Taxation and Finance 21-33-1 

35. Municipal Budget 21-35-1 

37. Streets, Parks and Other Public Property 21-37-1 

38. Acquisition or Lease of Real Property from Fed- 

eral Government for Parks, Recreation, and 

Tourism 21-38-1 

39. Contracts and Claims 21-39-1 

41. Special Improvements 21-41-1 

43. Business Improvement Districts 21-43-1 

45. Tax Increment Financing 21-45-1 

47. Delta Natural Gas District 21-47-1 

TITLE 23. ELECTIONS 

Chapter 1. Qualification of Candidates and Registration of 

Political Parties [Repealed] 23-1-1 

3. Corrupt Practices [Repealed] 23-3-1 

5. Registration and Elections [Repealed] 23-5-1 

7. Voting Machines and Electronic Voting System 

[Repealed] 23-7-1 

9. Absentee Ballot [Repealed] 23-9-1 

11. Presidential Election Law [Repealed] 23-11-1 

13. Mississippi Presidential Preference Primary and 

Delegate Selection Law [Repealed] 23-13-1 

15. Mississippi Election Code 23-15-1 

17. Amendments to Constitution by Voter Initiative 23-17-1 

TITLE 25. PUBLIC OFFICERS AND EMPLOYEES; PUBLIC 

RECORDS 

Chapter 1. Public Officers; General Provisions 25-1-1 

3. Salaries and Compensation 25-3-1 

4. Ethics in Government 25-4-1 

5. Removals From Office 25-5-1 

7. Fees 25-7-1 

9. Statewide Personnel System 25-9-1 

11. Social Security and Public Employees' Retire- 
ment and Disability Benefits 25-11-1 

13. Highway Safety Patrol Retirement System 25-13-1 

14. Government Employees Deferred Compensation 

Plan Law 25-14-1 

15. Group Insurance for Public Employees 25-15-1 

xvii 



General Outline 

TITLE 25. PUBLIC OFFICERS AND EMPLOYEES; PUBLIC 

RECORDS (Cont'd) 

Beginning 
Section 

17. Cafeteria Fringe Benefit Plans 25-17-1 

31. District Attorneys 25-31-1 

32. Public Defenders 25-32-1 

33. Notaries Public 25-33-1 

41. Open Meetings 25-41-1 

43. Administrative Procedures [Effective until July 

1, 2005. For version of Chapter 43 effective 
from and after July 1, 2005, see version that 

follows] 25-43-1 

43. [Effective from and after July 1, 2005. For ver- 
sion of Chapter 43 currently in effect, see 
preceding version] Administrative Procedures 25-43-1.101 

45. Permit and Licensing Procedures 25-45-1 

51. State Depository for Public Documents 25-51-1 

53. Mississippi Department of Information Technol- 
ogy Services (MDITS) 25-53-1 

55. Lost Records 25-55-1 

57. Destruction of Records [Repealed] 25-57-1 

58. Geographic Information System 25-58-1 

59. Archives and Records Management 25-59-1 

60. Local Government Records 25-60-1 

61. Public Access to Public Records 25-61-1 

63. Digital Signature Act 25-63-1 

65. Agency, University and Community/ Junior Col- 
lege Internal Auditing Program 25-65-1 

TITLE 27. TAXATION AND FINANCE 

Chapter 1. Assessors and County Tax Collectors 27-1-1 

3. State Tax Commission 27-3-1 

5. Motor Vehicle Comptroller 27-5-1 

7. Income Tax and Withholding 27-7-1 

8. Mississippi S Corporation Income Tax Act 27-8-1 

9. Estate Tax 27-9-1 

10. Uniform Estate Tax Apportionment Act 27-10-1 

11. Amusement Tax [Repealed] 27-11-1 

13. Corporation Franchise Tax 27-13-1 

15. Statewide Privilege Taxes 27-15-1 

17. Local Privilege Taxes 27-17-1 

19. Motor Vehicle Privilege and Excise Taxes 27-19-1 

21. Finance Company Privilege Tax 27-21-1 

23. Chain Store Privilege Tax [Repealed] 27-23-1 

xviii 



General Outline 

TITLE 27. TAXATION AND FINANCE (Cont'd) 

Beginning 
Section 

25. Severance Taxes 27-25-1 

27. Vending and Amusement Machine Taxes 27-27-1 

29. Ad Valorem Taxes — General Provisions 27-29-1 

31. Ad Valorem Taxes — General Exemptions 27-3 1- 1 

33. Ad Valorem Taxes — Homestead Exemptions ... . 27-33-1 

35. Ad Valorem Taxes — Assessment 27-35-1 

37. Ad Valorem Taxes— Payments in Lieu of Taxes 27-37-1 

38. Ad Valorem Taxes — Telecommunications Tax 

Reform 27-38-1 

39. Ad Valorem Taxes— State and Local Levies 27-39-1 

41. Ad Valorem Taxes— Collection 27-41-1 

43. Ad Valorem Taxes — Notice of Tax Sale to Owners 

and Lienors 27-43-1 

45. Ad Valorem Taxes — Redemption of Land Sold for 

Taxes 27-45-1 

47. Ad Valorem Taxes — Assignment of Tax Liens 27-47-1 

49. Ad Valorem Taxes — Insolvencies 27-49- 1 

51. Ad Valorem Taxes— Motor Vehicles 27-51-1 

53. Ad Valorem Taxes— Mobile Homes 27-53-1 

55. Gasoline and Motor Fuel Taxes 27-55-1 

57. TaxonOils 27-57-1 

59. Liquefied Compressed Gas Tax 27-59-1 

61. Interstate Commercial Carriers Motor Fuel Tax 27-61-1 

63. Motor Vehicle Fueling Centers [Repealed] 27-63-1 

65. Sales Tax 27-65-1 

67. Use or Compensating Taxes 27-67-1 

68. Uniform Sales and Use Tax Administration Law 27-68-1 

69. TobaccoTax 27-69-1 

71. Alcoholic Beverage Taxes 27-71-1 

73. TaxRefunds 27-73-1 

75. Reciprocal Collection of Taxes 27-75-1 

101. Annual Reports by Departments of Government 

and State-Supported Institutions 27-101-1 

103. State Budget 27-103-1 

104. State Fiscal Affairs 27-104-1 

105. Depositories 27-105-1 

107. Disaster Relief 27-107-1 

109. Cruise Vessels 27-109-1 

TITLE 29. PUBLIC LANDS, BUILDINGS AND PROPERTY 

Chapter 1. Public Lands 29-1-1 

3. Sixteenth Section and Lieu Lands 29-3-1 

xix 



General Outline 



TITLE 29. PUBLIC LANDS, BUILDINGS AND PROPERTY (Cont'd) 



5. Care of Capitol, Old Capitol, State Office Build- 
ings and Executive Mansion 

7. Mineral Leases of State Lands 

9. Inventories of State Property 

11. Energy Conservation in Public Buildings 

[Repealed] 

13. Flood Insurance for State-Owned Buildings .... 

15. Public Trust Tidelands 

17. Construction and Improvement of Public 
Facilities 



Beginning 
Section 

29-5-1 
29-7-1 
29-9-1 

29-11-1 
29-13-1 
29-15-1 

29-17-1 



TITLE 31. PUBLIC BUSINESS, BONDS AND OBLIGATIONS 

Chapter 1. General Provisions Relative to Public Contracts 31-1-1 

3. State Board of Public Contractors 31-3-1 

5. Public Works Contracts 31-5-1 

7. Public Purchases 31-7-1 

8. Acquisition of Public Buildings, Facilities, and 

Equipment Through Rental Contracts 31-8-1 

9. Surplus Property Procurement Commission 31-9-1 

11. State Construction Projects 31-11-1 

13. Validation of Public Bonds 31-13-1 

15. Refunding Bonds 31-15-1 

17. State Bonds; Retirement of Bonds 31-17-1 

18. Variable Rate Debt Instruments 31-18-1 

19. Public Debts 31-19-1 

21. Registered Bonds 31-21-1 

23. Mississippi Private Activity Bonds Allocation Act 31-23-1 

25. Mississippi Development Bank Act 31-25-1 

27. Mississippi Bond Refinancing Act 31-27-1 

29. Institute for Technology Development 31-29-1 

31. Mississippi Telecommunications Conference and 

Training Center 31-31-1 



TITLE 33. MILITARY AFFAIRS 

Chapter 1. Definitions and General Provisions Relating to 

the Military Forces 33-1-1 

3. Commander in Chief, Military Department, and 

Governor's Staff 33-3-1 

5. The Militia and Mississippi State Guard 33-5-1 

7. National Guard 33-7-1 

9. Property and Finances 33-9-1 

11. Training Facilities 33-11-1 



General Outline 

TITLE 33. MILITARY AFFAIRS (Cont'd) 

Beginning 
Section 

13. Mississippi Code of Military Justice 33-13-1 

15. Emergency Management and Civil Defense 33-15-1 

TITLE 35. WAR VETERANS AND PENSIONS 

Chapter 1. State Veterans Affairs Board 35-1-1 

3. War Veterans; Miscellaneous Provisions 35-3-1 

5. Guardianship of Veterans 35-5-1 

7. Veterans' Home Purchase Law 35-7-1 

9. Pensions [Repealed] 35-9-1 

TITLE 37. EDUCATION 

Chapter 1. State Board of Education 37-1-1 

3. State Department of Education 37-3-1 

4. State Board for Community and Junior Colleges 37-4-1 

5. County Boards of Education and 

Superintendents 37-5-1 

6. Mississippi Uniform School Law 37-6-1 

7. School Districts; Boards of Trustees of School 

Districts 37-7-1 

9. District Superintendents, Principals, Teachers, 

and Other Employees 37-9-1 

11. General Provisions Pertaining to Education 37-11-1 

13. Curriculum; School Year and Attendance 37-13-1 

15. Public Schools; Records, Enrollment and Trans- 

fer of Pupils 37-15-1 

16. Statewide Testing Program 37-16-1 

17. Accreditation of Schools 37-17-1 

18. Superior-Performing, Exemplary and Priority 

Schools Programs 37-18-1 

19. Minimum Program of Education 37-19-1 

20. Remedial Education 37-20-1 

21. Early Childhood Education 37-21-1 

22. State Funds for School Districts 37-22-1 

23. Exceptional Children 37-23-1 

25. Driver Education and Training 37-25-1 

26. State Court Education Fund 37-26-1 

27. Agricultural High Schools 37-27-1 

28. Charter Schools 37-28-1 

29. Junior Colleges 37-29-1 

31. Vocational Education 37-31-1 

33. Civilian Vocational Rehabilitation 37-33-1 

35. Adult Education 37-35-1 



xxi 



General Outline 

TITLE 37. EDUCATION (Cont'd) 

Beginning 
Section 

37. Public Schools; Accounting and Auditing 37-37-1 

39. Public Schools; Purchases 37-39-1 

41. Transportation of Pupils 37-41-1 

43. Textbooks 37-43-1 

45. State Aid to Public Schools 37-45-1 

47. State Aid for Construction of School Facilities 37-47-1 

49. Loans to Students 37-49-1 

5 1 . Financial Assistance to Children Attending Non- 
sectarian Private Schools 37-51-1 

53. Summer Normals 37-53-1 

55. School Libraries 37-55-1 

57. Taxation 37-57-1 

59. School Bonds and Obligations 37-59-1 

61. Expenditure of School Funds; Budgets 37-61-1 

63. Educational Television 37-63-1 

65. Closing of Public Schools and Institutions of 

Higher Learning 37-65-1 

101. Institutions of Higher Learning; General 

Provisions 37-101-1 

102. Off-campus Instructional Programs 37-102-1 

103. Residency and Fees of Students Attending or 

Applying for Admission to Educational 

Institutions 37-103-1 

104. Mississippi Educational Facilities Authority Act 

for Private, Nonprofit Institutions of Higher 

Learning 37-104-1 

105. Campuses and Streets of State Institutions of 

Higher Learning 37-105-1 

106. Post-Secondary Education Financial Assistance 37-106-1 

107. Scholarships for Children of Deceased or Dis- 

abled Law Enforcement Officers or Firemen 37-107-1 

108. Scholarships for Children of Prisoners of War or 

Men Missing in Action 37-108-1 

109. Medical Education Loans and Scholarships 

[Repealed] 37-109-1 

110. Mississippi Public Management Graduate In- 

tern Program 37-110-1 

111. Fraternities, Sororities and Other Societies 37-111-1 

113. Mississippi State University of Agriculture and 

Applied Science 37-113-1 

115. University of Mississippi 37-115-1 

117. Mississippi University for Women 37-117-1 

119. University of Southern Mississippi 37-119-1 



xxii 



General Outline 

TITLE 37. EDUCATION (Cont'd) 

Beginning 
Section 

121. Alcorn State University 37-121-1 

123. Delta State University 37-123-1 

125. Jackson State University 37-125-1 

127. Mississippi Valley State University 37-127-1 

129. Nursing Schools and Scholarships 37-129-1 

131. Teachers Demonstration and Practice Schools 37-131-1 

132. Student Teachers 37-132-1 

133. Technical Institutes 37-133-1 

135. Compacts with Other States 37-135-1 

137. School Asbestos Hazard Elimination Act 

[Repealed] 37-137-1 

138. Asbestos Abatement Accreditation and Certifica- 

tion Act 37-138-1 

139. Mississippi School for Mathematics and Science 37-139-1 

140. Mississippi School of the Arts 37-140-1 

141. The University Research Center Act of 1988 . . . 37-141-1 

143. Omnibus Loan or Scholarship Act of 1991 37-143-1 

145. Mississippi Opportunity Loan Program Act 37-145-1 

147. Mississippi University Research Authority Act 37-147-1 

149. Mississippi Teacher Center 37-149-1 

151. Mississippi Accountability and Adequate Educa- 
tion Program Act of 1997 37-151-1 

153. Work Force Education Act of 1994 37-153-1 

155. College Savings Plans of Mississippi 37-155-1 

157. Student Tuition Assistance 37-157-1 

159. Mississippi Critical Teacher Shortage Act 37-159-1 

TITLE 39. LIBRARIES, ARTS, ARCHIVES AND HISTORY 

Chapter 1. State Law Library; Legislative Reference 

Bureau 39-1-1 

3. Libraries and Library Commission 39-3-1 

5. Archives and History 39-5-1 

7. Antiquities 39-7-1 

9. Trusts to Promote Arts and Sciences 39-9-1 

11. Mississippi Arts Commission 39-11-1 

13. Historic Preservation Districts and Landmarks 39-13-1 

15. Municipal and County Funds to Support the Arts 39-15-1 
17. Mississippi Sports Hall of Fame and Dizzy Dean 

Museum 39-17-1 

19. Museum Unclaimed Property Act 39-19-1 

21. Mississippi Craft Center 39-21-1 

23. Mississippi Children's Museum 39-23-1 



xxm 



General Outline 



TITLE 39. LIBRARIES, ARTS, ARCHIVES AND HISTORY (Cont'd) 



25. 

27. 
29. 



Chapter 1. 

3. 

4. 
5. 

7. 

9. 
10. 
11. 



13. 
15. 

17. 
19. 

21. 
22. 
23. 
24. 
25. 

26. 

27. 
28. 
29. 
30. 

31. 

32. 

33. 



Beginning 
Section 

Southern Arts and Entertainment Center 39-25-1 

Mississippi Blues Commission 39-27-1 

Mississippi Commission on the Holocaust 39-29-1 

TITLE 41. PUBLIC HEALTH 

Mississippi Department of Public Health 

[Repealed] 41-1-1 

State Board of Health; Local Health Boards and 

Officers 41-3-1 

Department of Mental Health 41-4-1 

Governing Authorities for State Hospitals and 

Institutions 41-5-1 

Hospital and Health Care Commissions 41-7-1 

Regulation of Hospitals; Hospital Records 41-9-1 

Medical Records 41-10-1 

State Charity Hospitals; Diagnostic Treatment 
Center; Crippled Children's Treatment and 

Training Center 41-11-1 

Community Hospitals 41-13-1 

Department for the Prevention of Insanity 

[Repealed] 41-15-1 

State Mental Institutions 41-17-1 

Mental Retardation and Illness Centers, Facili- 
ties and Services 41-19-1 

Mentally 111 and Mentally Retarded Persons ... 41-21-1 

Hemophilia 41-22-1 

Contagious and Infectious Diseases; Quarantine 41-23-1 

Sickle Cell Testing Program 41-24-1 

Disinfection and Sanitation of Buildings and 

Premises 41-25-1 

Mississippi Safe Drinking Water Act of 1997 . . . 41-26-1 

Mosquito Control 41-27-1 

Diabetes 41-28-1 

Poisons, Drugs and Other Controlled Substances 41-29-1 
Alcoholism and Alcohol Abuse Prevention, Con- 
trol and Treatment 41-30-1 

Commitment of Alcoholics and Drug Addicts for 

Treatment 41-31-1 

Commitment of Alcoholics and Drug Addicts to 

Private Treatment Facilities 41-32-1 

Tuberculosis and Respiratory Diseases; Tubercu- 
losis Sanatorium 41-33-1 



XXIV 



General Outline 

TITLE 41. PUBLIC HEALTH (Cont'd) 

Beginning 
Section 

34. Health Care Practice Requirements Pertaining 

to Transmission of Hepatitis B and HIV 41-34-1 

35. Eye Inflammation of Young 41-35-1 

36. Determination of Death 41-36-1 

37. Autopsies 41-37-1 

39. Disposition of Human Bodies or Parts 41-39-1 

41. Surgical or Medical Procedures; Consents 41-41-1 

42. Family Planning 41-42-1 

43. Cemeteries and Burial Grounds 41-43-1 

45. Sexual Sterilization 41-45-1 

47. Transportation and Possession of Parakeets and 

Other Birds [Repealed] 41-47-1 

49. Regulation of Hotels and Innkeepers 41-49-1 

51. Animal and Poultry By-Products Disposal or 

Rendering Plants 41-51-1 

53. Dogs and Rabies Control 41-53-1 

55. Public Ambulance Service 41-55-1 

57. Vital Statistics 41-57-1 

58. Medical Radiation Technology 41-58-1 

59. Emergency Medical Services 41-59-1 

60. Emergency Medical Technicians — Paramedics 

— Use of Automated External Defibrillator .. 41-60-1 

61. State Medical Examiner 41-61-1 

63. Evaluation and Review of Professional Health 

Services Providers 41-63-1 

65. [Reserved] 

67. Mississippi Individual On-Site Wastewater Dis- 
posal System Law 41-67-1 

69. [Reserved] 

71. Home Health Agencies 41-71-1 

73. Hospital Equipment and Facilities Authority Act 41-73-1 

75. Ambulatory Surgical Facilities 41-75- 1 

77. Licensing of Birthing Centers 41-77-1 

79. Health Problems of School Children 41-79-1 

81. Perinatal Health Care 41-81-1 

83. Utilization Review of Availability of Hospital 

Resources and Medical Services 41-83-1 

85. Mississippi Hospice Law of 1995 41-85-1 

86. Mississippi Children's Health Care Act 41-86-1 

87. Early Intervention Act for Infants and Toddlers 41-87-1 

88. Mississippi Child Immunization Act of 1994 .... 41-88-1 

89. Infant Mortality Task Force 41-89-1 

90. Hearing Impairment of Infants and Toddlers .. . 41-90-1 

XXV 



General Outline 

TITLE 41. PUBLIC HEALTH (Cont'd) 

Beginning 
Section 

91. Central Cancer Registry 41-91-1 

93. Osteoporosis Prevention and Treatment Educa- 
tion Act 41-93-1 

95. Mississippi Health Policy Act of 1994 41-95-1 

97. State Employee Wellness and Physical Fitness 

Programs 41-97-1 

99. Qualified Health Center Grant Program 41-99-1 

101. Mississippi Council on Obesity Prevention and 

Management 41-101-1 

103. Task Force on Heart Disease and Stroke 

Prevention 41-103-1 

105. Healthcare Coordinating Council 41-105-1 

107. Health Care Rights of Conscience 41-107-1 

TITLE 43. PUBLIC WELFARE 

Chapter 1. Department of Human Services and County De- 
partments of Public Welfare 43-1-1 

3. Blind Persons 43-3-1 

5. Schools for the Blind and Deaf 43-5-1 

6. Rights and Liabilities of Blind and Other Hand- 

icapped Persons 43-6-1 

7. Council on Aging 43-7-1 

9. Old Age Assistance 43-9-1 

11. Institutions for the Aged or Infirm 43-11-1 

13. Medical Assistance for the Aged; Medicaid 43-13-1 

14. Interagency Coordinating Counsel for Children 

and Youth 43-14-1 

15. ChildWelfare 43-15-1 

16. Child Residential Home Notification Act 43-16-1 

17. Temporary Assistance to Needy Families 43-17-1 

18. Interstate Compact on the Placement of 

Children 43-18-1 

19. Support of Natural Children 43-19-1 

20. Child Care Facilities 43-20-1 

21. Youth Court 43-21-1 

23. FamilyCourts 43-23-1 

24. State Central Registry of Child Abuse Reports; 

Wide Area Telephone Service for Reporting 

ChildAbuse [Repealed] 43-24-1 

25. Interstate Compact on Juveniles 43-25-1 

27. Department of Youth Services 43-27-1 

29. Disabled Persons 43-29-1 

xxvi 



General Outline 

TITLE 43. PUBLIC WELFARE (Cont'd) 

Beginning 
Section 

31. Poor Persons 43-31-1 

33. Housing and Housing Authorities 43-33-1 

35. Urban Renewal and Redevelopment 43-35-1 

37. Acquisition of Real Property Using Public Funds 43-37-1 

39. Relocation Assistance 43-39-1 

41. Emergency and Disaster Assistance 43-41-1 

43. Administration of Social Security Funds 43-43-1 

45. Adult Protective Services [Repealed] 43-45-1 

47. Mississippi Vulnerable Adults Act 43-47-1 

49. Mississippi Welfare Restructuring Program Act 

of 1993 [Repealed] 43-49-1 

51. Family Preservation Act of 1994 43-51-1 

53. Mississippi Leadership Council on Aging 43-53-1 

55. Mississippi Commission for National and Com- 
munity Service 43-55-1 

57. Comprehensive Plan for Provision of Services to 

Disabled Persons [Repealed] 43-57-1 

59. Mississippi Commission on the Status of Women 43-59-1 

61. Mississippi Seniors and Indigents Rx Program 43-61-1 

TITLE 45. PUBLIC SAFETY AND GOOD ORDER 

Chapter 1. Department of Public Safety 45-1-1 

2. Law Enforcement Officers Death Benefits Trust 

Fund 45-2-1 

3. Highway Safety Patrol 45-3-1 

4. County Jail Officers Training Program 45-4-1 

5. Law Enforcement Officers Training Academy ... 45-5-1 

6. Law Enforcement Officers Training Program ... 45-6-1 

7. County Patrol Officers . 45-7-1 

9. Weapons 45-9-1 

11. Fire Protection Regulations, Fire Protection and 

Safety in Buildings 45-11-1 

13. Fireworks and Explosives 45-13-1 

14. Radiation Protection Program 45- 14- 1 

15. High Voltage Power Lines 45-15-1 

17. Civil Emergencies 45-17-1 

18. Emergency Management Assistance Compact .. 45-18-1 

19. Subversive Groups and Subversive Activities .. . 45-19-51 

21. Rock Festivals 45-21-1 

23. Boiler and Pressure Vessel Safety 45-23-1 

25. Identification Cards for Non-Drivers [Repealed] 45-25-1 

27. Mississippi Justice Information Center 45-27-1 

xxvii 



General Outline 



TITLE 45. PUBLIC SAFETY AND GOOD ORDER (Cont'd) 



29. Records 

31. Sex Offense Criminal History Record Informa- 
tion Act 

33. Registration of Sex Offenders 

35. Identification Cards 

37. Prevention of Youth Access to Tobacco Act 

39. Statewide Crime Stoppers Advisory Council 



Beginning 
Section 
45-29-1 



45-31- 
45-33- 
45-35- 
45-37- 
45-39- 



TITLE 47. PRISONS AND PRISONERS; PROBATION AND 

PAROLE 

Chapter 1. County and Municipal Prisons and Prisoners .. 47-1-1 

3. Removal of Prisoners 47-3-1 

4. Privately Operated Correctional Facilities 47-4-1 

5. Correctional System 47-5-1 

7. Probation and Parole 47-7-1 

TITLE 49. CONSERVATION AND ECOLOGY 

Chapter 1. General Provisions 49-1-1 

2. Department of Environmental Quality 49-2-1 

3. Fisheries and Wildlife Research 49-3-1 

4. Mississippi Department of Wildlife, Fisheries 

and Parks 49-4-1 

5. Fish, Game and Bird Protection and Refuges ... 49-5-1 

6. Motor Vehicle and Boat Replacement Program 49-6-1 

7. Hunting and Fishing 49-7-1 

8. Importation, Sale and Possession of Inherently 

Dangerous Wild Animals 49-8-1 

9. Mussels 49-9-1 

11. Private Shooting Preserves 49-11-1 

13. Commercial Quail 49-13-1 

15. Seafood 49-15-1 

17. Pollution of Waters, Streams, and Air 49-17-1 

18. Mississippi Liability of Persons Responding to 

Oil Spills Act 49-18-1 

19. Forests and Forest Protection 49-19- 1 

20. Mississippi River Timberlands Control Act 49-20-1 

21. Interstate Environmental Compact 49-21-1 

23. Outdoor Advertising 49-23-1 

25. Junkyards 49-25-1 

26. Channel Maintenance Act 49-26-1 

27. Coastal Wetlands Protection Act 49-27-1 

28. Shoreline and Beach Preservation Districts 49-28-1 



XXVlll 



General Outline 

TITLE 49. CONSERVATION AND ECOLOGY (Cont'd) 

Beginning 
Section 

29. Environmental Protection Council [Repealed] .. 49-29-1 

31. Mississippi Multimedia Pollution Prevention Act 49-31-1 
33. Mississippi Agricultural and Forestry Activity 

Act 49-33-1 

35. Mississippi Brownfields Voluntary Cleanup and 
Redevelopment Act; Remediation of Property 

on National Priorities List 49-35-1 

37. Statewide Scientific Information Management 49-37-1 

TITLE 51. WATERS, WATER RESOURCES, WATER DISTRICTS, 
DRAINAGE, AND FLOOD CONTROL 

Chapter 1. Navigable Waters 51-1-1 

2. Mississippi Marine Litter Act 51-2-1 

3. Water Resources; Regulation and Control 51-3-1 

4. Mississippi Scenic Streams Stewardship Act ... 51-4-1 

5. Subsurface Waters; Well Drillers 51-5-1 

7. Water Management Districts 51-7-1 

8. Joint Water Management Districts 51-8-1 

9. Development of Region Bordering Pearl River; 

Pearl River Valley Water Supply District; Met- 
ropolitan Area Water Supply Act 51-9-1 

11. Pearl River Basin Development District 51-11-1 

13. Tombigbee Valley Authority and Water Manage- 
ment District 51-13-1 

15. Pat Harrison Waterway Commission and 

District 51-15-1 

17. Big Black River Basin District 51-17-1 

19. West Central Mississippi Waterway Commission 

[Repealed] 51-19-1 

21. Lower Mississippi River Basin Development Dis- 
trict [Repealed] 51-21-1 

23. Lower Yazoo River Basin District [Repealed] ... 51-23-1 

25. Yellow Creek Watershed Authority 51-25-1 

27. Tennessee-Tombigbee Waterway Compact 51-27-1 

29. Drainage Districts with Local Commissioners 51-29-1 

31. Drainage Districts with County Commissioners 51-31-1 
33. Provisions Common to Drainage Districts and 

Swamp Land Districts 51-33-1 

35. Flood Control 51-35-1 

37. Watershed Districts 51-37-1 

39. Storm Water Management Districts 51-39-1 

41. Public Water Authorities 51-41-1 

xxix 



General Outline 



TITLE 53. OIL, GAS, AND OTHER MINERALS 



Chapter 1. State Oil and Gas Board 

3. Development, Production and Distribution of 

Gas and Oil 

5. Geological and Mineral Survey 

7. Surface Mining and Reclamation of Land 

9. Surface Coal Mining and Reclamation of Land 



Beginning 
Section 

53-1-1 



53-3-1 
53-5-1 
53-7-1 
53-9-1 



TITLE 55. PARKS AND RECREATION 

Chapter 1. Mississippi Recreational Advisory Council 

[Repealed] 55-1-1 

State Parks and Forests 55-3-1 

Federal Parks and National Parkways 55-5-1 

Bridge and Park Commissions 55-7-1 

County and Municipal Facilities 55-9-1 

Harrison County Parkway 55-11-1 

Natchez Trace Parkway 55-13-1 

Commemorative Parks and Monuments 55-15-1 

International Gardens of Mississippi 55-17-1 

Bienville Recreational District 55-19-1 

Mississippi Zoological Park and Garden Districts 55-21-1 

Mississippi Memorial Stadium 55-23-1 

Mississippi Coast Coliseum Commission 55-24-1 

Rails-to-Trails Recreational District 55-25-1 

PLANNING, RESEARCH AND DEVELOPMENT 

Chapter 1. Department of Economic and Community 

Development 57-1-1 

Agriculture and Industry Program 57-3-1 

Industrial Development Fund 57-4- 1 

Industrial Parks and Districts 57-5-1 

Sale or Development of Airport Lands, or Other 

Lands, for Industrial Purposes 57-7-1 

Industrial Plant Training 57-9-1 

Small Business Assistance 57-10-1 

Market and Industrial Studies and Research ... 57-11-1 

Research and Development Center 57-13-1 

Marine Resources 57-15-1 

Forest Products Utilization Laboratory 

[Repealed] 57-17-1 

Renewable Natural Resources Research Act of 

1994 57-18-1 



3. 

5. 

7. 

9. 
11. 
13. 
15. 
17. 
19. 
21. 
23. 
24. 
25. 

TITLE 57 



3. 
4. 
5. 

7. 

9. 
10. 
11. 
13. 
15. 
17. 

18. 



General Outline 

TITLE 57. PLANNING, RESEARCH AND DEVELOPMENT (Cont'd) 

Beginning 
Section 

19. Food Technology Laboratory 57-19-1 

21. State Chemical Laboratory 57-21-1 

23. Pharmaceutical Product Development and 

Utilization 57-23-1 

25. Southern States Energy Compact 57-25-1 

27. Regional Tourist Promotion Councils 57-27-1 

29. Travel and Tourism 57-29-1 

30. Family-Oriented Enterprises 57-30-1 

31. County Industrial Development Authorities .... 57-31-1 

32. Southeast Mississippi Industrial Council 57-32-1 

33. Southern Growth Policies Agreement 57-33-1 

35. Tennessee River Valley Association 57-35-1 

36. Chickasaw Trail Economic Development Com- 

pact [Repealed] 57-36-1 

37. Transportation Planning Council [Repealed] ... . 57-37-1 

39. Energy and Transportation Planning 57-39-1 

41. Financing Industrial Enterprise Projects 57-41-1 

43. Railroad Revitalization 57-43-1 

44. Local Governments Freight Rail Service Projects 57-44-1 

45. Mississippi-Louisiana Rapid Rail Transit 

Compact 57-45-1 

47. Southeast Interstate Low-Level Radioactive 

Waste Management Compact 57-47-1 

49. Nuclear Waste Storage and Disposal 57-49-1 

51. Enterprise Zones [Repealed] 57-51-1 

53. Corporate Headquarters Incentive Program 

[Repealed] 57-53-1 

54. Advanced Technology Initiative [Repealed] 57-54-1 

55. Universities Research Institutes 57-55-1 

56. Mississippi Technology Transfer Office 57-56-1 

57. Export Trade Development 57-57-1 

59. Mississippi Capital Companies [Repealed] 57-59-1 

61. Mississippi Business Investment Act 57-61-1 

62. Mississippi Advantage Jobs Act 57-62-1 

63. Statewide Economic Development and Planning 

Act 57-63-1 

64. Regional Economic Development 57-64-1 

65. Mississippi International Trade Institute 57-65-1 

67. Mississippi Superconducting Super Collider Act 57-67-1 
69. Mississippi Minority Business Enterprise Act .. 57-69-1 
71. Mississippi Small Enterprise Development Fi- 
nance Act 57-71-1 

73. Economic Development Reform Act 57-73-1 

xxxi 



General Outline 

TITLE 57. PLANNING, RESEARCH AND DEVELOPMENT (Cont'd) 

Beginning 
Section 

75. Mississippi Major Economic Impact Act 57-75-1 

77. Venture Capital Act of 1994 57-77-1 

79. Mississippi Small Town Development Act 57-79-1 

80. Growth and Prosperity Act 57-80-1 

81. Mississippi Science and Technology Commission 

[Repealed] 57-81-1 

83. Mississippi Technology, Inc. Liaison Committee 57-83-1 

85. Mississippi Rural Impact Act 57-85-1 

87. Mississippi Broadband Technology Development 

Act 57-87-1 

89. Mississippi Motion Picture Incentive Act 57-89-1 

TITLE 59. PORTS, HARBORS, LANDINGS AND WATERCRAFT 

Chapter 1. Harbor or Port Commissions; Powers of Political 

Subdivision; Pilotage 59-1-1 

3. Ports of Entry 59-3-1 

5. State Ports and Harbors 59-5-1 

6. Compact for Development of Deep Draft Harbor 

and Terminal 59-6-1 

7. County and Municipal Harbors 59-7-1 

9. County Port Authority or Development 

Commission 59-9-1 

11. County Port and Harbor Commission 59-11-1 

13. Harbor Improvements by Coast Counties 59-13-1 

15. Small Craft Harbors 59-15-1 

17. State Inland Ports 59-17-1 

19. Landings 59-19-1 

21. Boats and Other Vessels 59-21-1 

23. Alcohol Boating Safety Act 59-23-1 

25. Certificates of Title for Boats and Other Vessels 59-25-1 

TITLE 61. AVIATION 

Chapter 1. Transportation Commission 61-1-1 

3. Airport Authorities 61-3-1 

4. Mississippi Wayport Authority Act 61-4-1 

5. Acquisition, Disposition and Support of Airport 

Facilities 61-5-1 

7. Airport Zoning 61-7-1 

9. Incorporation of Airport Into Corporate Bound- 
aries of Municipality 61-9-1 

11. Operation of Aircraft; Certification and Licens- 
ing of Pilots and Aircraft 61-11-1 



XXXll 



General Outline 

TITLE 61. AVIATION (Cont'd) 

Beginning 
Section 
13. Aircraft for Use of Governor, State Departments 

and Agencies 61-13-1 

15. Registration of Aircraft 61-15-1 

17. Concealing or Misrepresenting Aircraft Identifi- 
cation Number; Non-Conforming Aircraft Fuel 

Containers 61-17-1 

TITLE 63. MOTOR VEHICLES AND TRAFFIC REGULATIONS 

Chapter 1. Driver's License 63-1-1 

2. Mandatory Use of Safety Seat Belts 63-2-1 

3. Traffic Regulations and Rules of the Road 63-3-1 

5. Size, Weight and Load 63-5-1 

7. Equipment and Identification 63-7-1 

9. Traffic Violations Procedure 63-9-1 

10. Nonresident Traffic Violator Compact 63-10-1 

11. Implied Consent Law 63-11-1 

13. Inspection of Motor Vehicles 63-13-1 

15. Motor Vehicle Safety — Responsibility 63-15-1 

17. Manufacture, Sales and Distribution 63-17-1 

19. Motor Vehicle Sales Finance Law 63-19-1 

21. Motor Vehicle Titles 63-21-1 

23. Abandoned Motor Vehicles 63-23-1 

25. Motor Vehicle Chop Shop, Stolen and Altered 

Property Act 63-25-1 

27. Disclosure of Use of Nonoriginal Replacement 

Parts 63-27-1 

TITLE 65. HIGHWAYS, BRIDGES AND FERRIES 

Chapter 1. Transportation Department 65-1-1 

2. State Highway Arbitration Board 65-2-1 

3. State Highway System 65-3-1 

4. Economic Development Highway Act 65-4-1 

5. Controlled Access Facilities 65-5-1 

7. Public Roads and Streets; Private Way 65-7-1 

9. State Aid Roads in Counties 65-9-1 

10. County Major Feeder Road System 

[Repealed] 65-10-1 

11. County Highway Aid 65-11-1 

13. Highway and Street Revenue Bond Authority 65-13-1 

15. County Funds for Roads and Bridges 65-15-1 

17. County Road Officials 65-17-1 

18. Local System Road Program 65-18-1 



XXXlll 



General Outline 

TITLE 65. HIGHWAYS, BRIDGES AND FERRIES (Cont'd) 

Beginning 
Section 

19. Separate Road Districts 65-19-1 

21. Bridges; General Provisions 65-21-1 

23. Bridges; Boundary and Other Waters 65-23-1 

25. Mississippi River Bridges 65-25-1 

26. Tennessee-Tombigbee Waterway Bridges 65-26-1 

27. Ferries; General Provisions 65-27-1 

29. Ferries in Certain Counties 65-29-1 

31. Hospitality Stations on Highways 65-31-1 

33. Sea Walls 65-33-1 

37. Local System Bridge Replacement and Rehabil- 
itation Program 65-37-1 

39. Gaming Counties Bond Sinking Fund 65-39-1 

41. Mississippi Scenic Byways 65-41-1 

TITLE 67. ALCOHOLIC BEVERAGES 

Chapter 1. Local Option Alcoholic Beverage Control 67-1-1 

3. Sale of Light Wine, Beer, and Other Alcoholic 

Beverages 67-3-1 

5. Native Wines 67-5-1 

7. Beer Industry Fair Dealing Act 67-7-1 

9. Possession or Transportation of Alcoholic Bever- 
ages, Light Wine, or Beer 67-9-1 

TITLE 69. AGRICULTURE, HORTICULTURE, AND ANIMALS 

Chapter 1. Agriculture and Commerce Department; Council 

on Agriculture 69-1-1 

2. Mississippi Farm Reform Act 69-2-1 

3. Agricultural Seeds 69-3-1 

5. Fairs; Stock Shows; Improvement of Livestock 69-5-1 

7. Markets and Marketing; Domestic Fish Farming 69-7-1 

9. Soybean Promotion Board 69-9-1 

10. Rice Promotion Board 69-10-1 

11. Swine 69-11-1 

13. Stock Laws, Estrays 69-13-1 

15. Board of Animal Health; Livestock and Animal 

Diseases 69-15-1 

17. Livestock Biologies, Drugs and Vaccines 69-17-1 

19. Regulation of Professional Services 69-19-1 

21. Crop Spraying and Licensing of Aerial 

Applicators 69-21-1 

23. Mississippi Pesticide Law 69-23-1 

24. Fertilizing Materials and Additives 69-24-1 



XXXIV 



General Outline 

TITLE 69. AGRICULTURE, HORTICULTURE, AND 
ANIMALS (Cont'd) 

Beginning 
Section 

25. Plants, Plant and Bee Diseases 69-25-1 

27. Soil Conservation 69-27-1 

28. Protection and Conservation of Agricultural 

Lands 69-28-1 

29. Livestock Brands, Theft or Loss of Livestock and 

Protective Associations 69-29-1 

31. Regulation of Moisture-Measuring Devices 69-31-1 

33. Pecan Harvesting 69-33-1 

35. Mississippi Dairy Promotion Act 69-35-1 

36. Southern Dairy Compact 69-36-1 

37. Mississippi Boll Weevil Management Act 69-37-1 

39. Agricultural Liming Materials 69-39-1 

41. Mississippi Agribusiness Council Act of 1993 .. . 69-41-1 

42. Program to Encourage Growth in Mississippi 

Agribusiness Industry 69-42-1 

43. Mississippi Ratite Council and Promotion Board 69-43-1 

45. Mississippi Agricultural Promotions Program 

Act 69-45-1 

46. Mississippi Land, Water and Timber Resources 

Act 69-46-1 

47. Organic Certification Program 69-47-1 

49. Field Crop Products 69-49-1 

51. Ethanol, Anhydrous Alcohol and Wet Alcohol . . . 69-51-1 

TITLE 71. LABOR AND INDUSTRY 

Chapter 1. Employer and Employee 71-1-1 

3. Workers' Compensation 71-3-1 

5. Unemployment Compensation 71-5-1 

7. Drug and Alcohol Testing of Employees 71-7-1 

9. Medical Savings Account Act 71-9-1 

TITLE 73. PROFESSIONS AND VOCATIONS 

Chapter 1. Architects 73-1-1 

2. Landscape Architectural Practice 73-2-1 

3. Attorneys at Law 73-3-1 

4. Auctioneers 73-4-1 

5. Barbers 73-5-1 

6. Chiropractors 73-6-1 

7. Cosmetologists 73-7-1 

9. Dentists 73-9-1 

10. Dietitians 73-10-1 



XXXV 



General Outline 

TITLE 73. PROFESSIONS AND VOCATIONS (Cont'd) 

Beginning 
Section 

11. Embalmers 73-11-1 

13. Engineers and Land Surveyors 73-13-1 

14. Hearing Aid Dealers 73-14-1 

15. Nurses 73-15-1 

17. Nursing Home Administrators 73-17-1 

19. Optometry and Optometrists 73-19-1 

21. Pharmacists 73-21-1 

22. Orthotics and Prosthetics 73-22-1 

23. Physical Therapists 73-23-1 

24. Mississippi Occupational Therapy Practice Act 73-24-1 

25. Physicians 73-25-1 

26. Physician Assistants 73-26-1 

27. Podiatrists 73-27-1 

29. Polygraph Examiners 73-29-1 

30. Licensed Professional Counselors 73-30-1 

31. Psychologists 73-31-1 

33. Public Accountants 73-33-1 

34. Real Estate Appraisers 73-34-1 

35. Real Estate Brokers 73-35-1 

36. Registered Foresters 73-36-1 

37. Sanitarians 73-37-1 

38. Speech Pathologists and Audiologists 73-38-1 

39. Veterinarians 73-39-1 

41. Athlete Agents 73-41-1 

42. Uniform Athlete Agents Law 73-42-1 

43 . State Board of Medical Licensure 73-43-1 

45. Information to Be Included in Prescriptions 73-45-1 

47. [Reserved] 

49. Health Care Provider Licensing Boards 73-49-1 

5 1 . Unlicensed Practice of Profession 73-51-1 

52. Licensure Records 73-52-1 

53. Licensing and Regulation of Social Workers .... 73-53-1 

54. Marriage and Family Therapists 73-54-1 

55. Mississippi Athletic Trainers Licensure Act 73-55-1 

57. Mississippi Respiratory Care Practice Act 73-57-1 

59. Residential Builders and Remodelers 73-59-1 

60. Home Inspectors 73-60-1 

61. Tattooing and Body Piercing 73-61-1 

63. Registered Professional Geologists Practice Act 73-63-1 

65. Professional Art Therapists 73-65-1 

67. Professional Massage Therapists 73-67-1 



XXXVI 



General Outline 

TITLE 75. REGULATION OF TRADE, COMMERCE AND 

INVESTMENTS 

Beginning 
Section 

Chapter 1. Uniform Commercial Code — General Provisions 75-1-101 

2. Uniform Commercial Code — Sales 75-2-101 

2A. Uniform Commercial Code — Leases 75-2 A- 101 

3. Uniform Commercial Code — Negotiable 

Instruments 75-3-101 

4. Uniform Commercial Code — Bank Deposits and 

Collections 75-4-101 

4A. Uniform Commercial Code — Funds Transfers .. 75-4A-101 

5. Uniform Commercial Code — Revised Article 5. 

Letters of Credit 75-5-101 

6. Uniform Commercial Code — Bulk Transfers .... 75-6-101 

7. Uniform Commercial Code — Documents of Title 75-7-101 

8. Uniform Commercial Code — Revised Article 8. 

Investment Securities 75-8-101 

9. Uniform Commercial Code — Secured 

Transactions 75-9-101 

10. Uniform Commercial Code — Effective Date and 

Repealer 75-10-101 

11. Uniform Commercial Code — Effective Date and 

Transition Provisions: 1977 Amendments 75-11-101 

12. Uniform Electronic Transactions Act 75-12-1 

13. Bills, Notes and Other Writings 75-13-1 

15. Sale of Checks 75-15-1 

17. Interest, Finance Charges, and Other Charges 75-17-1 

18. Revolving Charge Agreements; Credit Cards. 

[Repealed] 75-18-1 

19. Seals 75-19-1 

21. Trusts and Combines in Restraint or Hindrance 

of Trade 75-21-1 

23. Fair Trade Laws 75-23-1 

24. Regulation of Business for Consumer Protection 75-24-1 

25. Registration of Trademarks and Labels 75-25-1 

26. Mississippi Uniform Trade Secrets Act 75-26-1 

27. Weights and Measures 75-27-1 

29. Sale and Inspection of Food and Drugs 75-29-1 

31. Milk and Milk Products 75-31-1 

33. Meat, Meat-Food and Poultry Regulation and 

Inspection 75-33-1 

35. Meat Inspection 75-35-1 

37. Operation of Frozen Food Locker Plants 75-37-1 

39. Sale of Baby Chicks 75-39-1 

xxxvii 



General Outline 

TITLE 75. REGULATION OF TRADE, COMMERCE AND 
INVESTMENTS (Cont'd) 

Beginning 
Section 

40. Importation and Sale of Animals or Birds 75-40-1 

41. Gins 75-41-1 

43. Farm Warehouses 75-43-1 

44. Grain Warehouses 75-44-1 

45. Commercial Feeds and Grains 75-45-1 

47. Commercial Fertilizers 75-47-1 

49. Movable Homes 75-49-1 

51. WaterHeaters 75-51-1 

53. Paints, Varnishes and Similar Materials 75-53-1 

55. Gasoline and Petroleum Products 75-55-1 

56. Antifreeze and Summer Coolants 75-56-1 

57. Liquefied Petroleum Gases 75-57-1 

58. Mississippi Natural Gas Marketing Act 75-58-1 

59. Correspondence Courses 75-59-1 

60. Proprietary Schools and Colleges 75-60-1 

61. Manufacture and Sale of Jewelry and Optical 

Equipment 75-61-1 

63. Sales of Cemetery Merchandise and Funeral 

Services 75-63-1 

65. Going Out of Business Sales; Unsolicited Goods 75-65-1 

66. Home Solicitation Sales 75-66-1 

67. Loans 75-67-1 

69. Farm Loan Bonds 75-69-1 

71. Uniform Securities Law 75-71-1 

72. Business Takeovers 75-72-1 

73. Hotels and Innkeepers 75-73-1 

74. Youth Camps 75-74-1 

75. Amusements, Exhibitions and Athletic Events 75-75-1 

76. Mississippi Gaming Control Act 75-76-1 

77. Repurchase of Inventories From Retailers Upon 

Termination of Contract 75-77-1 

79. Pulpwood Scaling and Practices 75-79-1 

81. Dance Studio Lessons 75-81-101 

83. Health Spas 75-83-1 

85. Transient Vendor 75-85-1 

87. Contracts Between Out-of-State Principals and 

Commissioned Sales Representatives 75-87-1 

89. Mississippi Commodities Enforcement Act 75-89-1 

TITLE 77. PUBLIC UTILITIES AND CARRIERS 

Chapter 1. Public Service Commission 77-1-1 

2. Public Utilities Staff 77-2-1 



XXXVlll 



General Outline 

TITLE 77. PUBLIC UTILITIES AND CARRIERS (Cont'd) 

Beginning 
Section 
3. Regulation of Public Utilities 77-3-1 

5. Electric Power 77-5-1 

6. Municipal Gas Authority of Mississippi Law .... 77-6-1 

7. Motor Carriers 77-7-1 

9. Railroads and Other Common Carriers 77-9-1 

11. Gas Pipelines and Distribution Systems 77-11-1 

13. Regulation of Excavations Near Underground 

Utility Facilities 77-13-1 

15. Local Natural Gas Districts 77-15-1 



Chapter 



TITLE 79. CORPORATIONS, ASSOCIATIONS, AND 
PARTNERSHIPS 

1. General Provisions Relative to Corporations .... 79-1-1 
3. Business Cornorations TRenealedl 79-3-1 


4. 
5. 


Mississippi Business Corporation Act 

Business Development Corporations 


79-4-1.01 
79-5-1 


6. 

7. 

9. 
10. 
11. 


Foreign Limited Liability Companies [Repealed] 

Small Business Investment Companies 

Professional Corporations [Repealed] 

Mississippi Professional Corporation Act 

Nonprofit, Nonshare Corporations and Religious 
Societies 


79-6-1 

79-7-1 

79-9-1 

79-10-1 

79-11-1 


12. 


[Effective January 1, 2007 this chapter shall 
stand repealed] Partnerships 


79-12-1 


13. 


Limited Partnerships [Repealed] 


79-13-1 


13. 


[Effective January 1, 2005] Uniform Partnership 
Act (1997) 


79-13-101 


14. 


Mississippi Limited Partnership Act 


79-14-101 


15. 


Investment Trusts 


79-15-1 


16. 


Mississippi Registration of Foreign Business 
Trusts Act 


79-16-1 


17. 


Agricultural Associations; Conversion to Corpo- 
rate Form 


79-17-1 


19. 


Agricultural Cooperative Marketing Associa- 
tions 


79-19-1 


21. 
22. 


Aquatic Products Marketing Association 

Mississippi Aquaculture Act of 1988 


79-21-1 
79-22-1 


23. 
25. 


Commercial and Proprietary Information 

Mississippi Shareholder Protection Act 


79-23-1 
79-25-1 


27. 


Mississippi Control Share Act 


79-27-1 


29. 


Mississippi Limited Liability Company Act 


79-29-101 
xxxix 



General Outline 

TITLE 79. CORPORATIONS, ASSOCIATIONS, AND 
PARTNERSHIPS (Cont'd) 



31. 



33. 



Mississippi Registration of Foreign Limited Lia- 
bility Partnerships Act [Repealed] 

Corporate Successor Asbestos-Related Liability 
in Connection with Mergers or Consolidations 



Beginning 
Section 

79-31-1 

79-33-1 



TITLE 81. BANKS AND FINANCIAL INSTITUTIONS 

Chapter 1. Department of Banking and Consumer Finance 81-1-1 

3. Incorporation and Organization of Banks 81-3-1 

5. General Provisions Relating to Banks and 

Banking 81-5-1 

7. Branch Banks 81-7-1 

8. Regional Banking Institutions 81-8-1 

9. Insolvent Banks 81-9-1 

11. Savings and Loan Associations [Repealed] 81-11-1 

12. Savings Associations Law 81-12-1 

13. Credit Unions 81-13-1 

14. Savings Bank Law 81-14-1 

15. Mississippi Rural Credit Law 81-15-1 

17. Farmers' Credit Associations 81-17-1 

18. Mississippi Mortgage Consumer Protection Law 81-18-1 

19. Consumer Loan Broker Act 81-19-1 

20. Consumer Complaints and Disputes Against 

Mortgage Companies 81-20-1 

21. Insurance Premium Finance Companies 81-21-1 

22. Mississippi Nonprofit Debt Management Ser- 

vices Act [Repealed effective July 1, 2006] .... 81-22-1 

23. Interstate Bank Branching 81-23-1 

25. The Mississippi International Banking Act 81-25-1 

27. Multistate, State and Limited Liability Trust 

Institutions 81-27-1.001 

TITLE 83. INSURANCE 

Chapter 1. Department of Insurance 83-1-1 

2. Competitive Rating for Property and Casualty 

Insurance 83-2-1 

3. Insurance Commissioner, Rating Bureau and 

Rates 83-3-1 

5. General Provisions Relative to Insurance and 

Insurance Companies 83-5-1 

6. Registration and Examination of Insurers 83-6-1 

7. Life Insurance 83-7-1 



xl 



General Outline 

TITLE 83. INSURANCE (Cont'd) 

Beginning 
Section 
9. Accident, Health and Medicare Supplement 

Insurance 83-9-1 

11. Automobile Insurance 83-11-1 

13. Fire Insurance 83-13-1 

14. Homeowners' and Farmowners' Insurance 

[Repealed] 83-14-1 

15. Title Insurance 83-15-1 

17. Insurance Agents, Solicitors, or Adjusters 83-17-1 

18. Insurance Administrators and Managing Gen- 

eral Agents 83-18-1 

19. Domestic Companies 83-19-1 

20. Domicile Change for Domestic and Foreign 

Insurers 83-20-1 

21. Foreign Companies 83-21-1 

23. Insolvent Insurance Companies; Insurance 

Guaranty Association 83-23-1 

24. Insurers Rehabilitation and Liquidation Act ... . 83-24-1 

25. Co-operative Insurance 83-25-1 

27. Surety Companies 83-27-1 

29. Fraternal Societies 83-29-1 

30. Larger Fraternal Benefit Societies 83-30- 1 

31. Mutual Companies 83-31-1 

33. Reciprocal Insurance 83-33-1 

34. Windstorm Underwriting Association 83-34-1 

35. Underwriting Association [Repealed] 83-35-1 

36. Joint Underwriting Association for Medical Mal- 

practice Insurance 83-36-1 

37. Burial Associations 83-37-1 

38. Mississippi Residential Property Insurance Un- 

derwriting Association Law 83-38-1 

39. Bail Bonds and Bondsmen 83-39-1 

41. Hospital and Medical Service Associations and 

Contracts 83-41-1 

43. Nonprofit Dental Service Corporations 83-43-1 

45. Nonprofit, Community Service Blood Supply 

Plans 83-45-1 

47. Nonprofit Medical Liability Insurance 

Corporations 83-47-1 

48. Medical Malpractice Insurance Availability Act 

[Repealed effective July 1, 2005] 83-48-1 

49. Legal Expense Insurance 83-49-1 

51. Dental Care Benefits 83-51-1 

53. Credit Life and Credit Disability Insurance .... 83-53-1 

xli 



General Outline 

TITLE 83. INSURANCE (Cont'd) 

Beginning 
Section 

54. Mississippi Creditor-Placed Insurance Act 83-54-1 

55. Risk Retention Act 83-55-1 

57. Home Warranties [Repealed] 83-57-1 

58. New Home Warranty Act 83-58-1 

59. Business Transacted With Producer Controlled 

Insurer Act 83-59-1 

61. Voluntary Basic Health Insurance Coverage Law 83-61-1 

63. Small Employer Health Benefit Plans 83-63-1 

65. Regulation of Vehicle Service Contracts 83-65-101 

67. Utilization of Modern Systems for Holding and 
Transferring Securities Without Physical 

Delivery 83-67-1 

TITLE 85. DEBTOR-CREDITOR RELATIONSHIP 

Chapter 1. Assignment for Benefit of Creditors 85-1-1 

3. Exempt Property 85-3-1 

5. Joint and Several Debtors 85-5-1 

7. Liens 85-7-1 

8. Uniform Federal Lien Registration Act 85-8-1 

9. Debt Adjusting or Credit Arranging 

[Repealed] 85-9-1 

TITLE 87. CONTRACTS AND CONTRACTUAL RELATIONS 

Chapter 1. Gambling and Future Contracts 87-1-1 

3. Power and Letters of Attorney 87-3-1 

5. Principal and Surety 87-5-1 

7. Improvements to Real Property 87-7-1 

9. General Provisions 87-9-1 

TITLE 89. REAL AND PERSONAL PROPERTY 

Chapter 1. Land and Conveyances 89-1-1 

2. Liability of Recreational Landowners 89-2-1 

3. Acknowledgments 89-3-1 

5. Recording of Instruments 89-5-1 

6. Mississippi Plane Coordinate System 89-6-1 

7. Landlord and Tenant 89-7-1 

8. Residential Landlord and Tenant Act 89-8-1 

9. Condominiums 89-9-1 

11. Escheats 89-11-1 

12. Uniform Disposition of Unclaimed Property Act 89-12-1 

13. Party Fences 89-13-1 

xlii 



General Outline 

TITLE 89. REAL AND PERSONAL PROPERTY (Cont'd) 

Beginning 
Section 

15. Party Walls 89-15-1 

17. Salvage 89-17-1 

19. Mississippi Conservation Easements 89-19-1 

21. Uniform Disclaimer of Property Interests Act .. 89-21-1 

TITLE 91. TRUSTS AND ESTATES 

Chapter 1. Descent and Distribution 91-1-1 

3. Uniform Simultaneous Death Law 91-3-1 

5. Wills and Testaments 91-5-1 

7. Executors and Administrators 91-7-1 

9. Trusts and Trustees 91-9-1 

11. Fiduciary Security Transfers 91-11-1 

13. Fiduciary Investments 91-13-1 

15. Release of Powers of Appointment 91-15-1 

17. Uniform Principal and Income Law 91-17-1 

19. Gifts to Minors [Repealed] 91-19-1 

20. Transfers to Minors 91-20-1 

21. Uniform Transfer-on-Death Security Registra- 

tion Act 91-21-1 

TITLE 93. DOMESTIC RELATIONS 

Chapter 1. Marriage 93-1-1 

3. Husband and Wife 93-3-1 

5. Divorce and Alimony 93-5-1 

7. Annulment of Marriage 93-7-1 

9. Bastardy 93-9-1 

11. Enforcement of Support of Dependents 93-11-1 

12. Enforcement of Child Support Orders from For- 

eign Jurisdictions 93-12-1 

13. Guardians and Conservators 93-13-1 

15. Termination of Rights of Unfit Parents 93-15-1 

16. Grandparents' Visitation Rights 93-16-1 

17. Adoption, Change of Name, and Legitimation of 

Children 93-17-1 

19. Removal of Disability of Minority 93-19-1 

2 1 . Protection from Domestic Abuse 93-2 1-1 

22. Uniform Interstate Enforcement of Domestic Vi- 

olence Protection Orders 93-22-1 

23. Uniform Child Custody Jurisdiction Act 

[Repealed] 93-23-1 

25. Uniform Interstate Family Support Act 93-25-1 



xliii 



General Outline 

TITLE 93. DOMESTIC RELATIONS (Cont'd) 

Beginning 
Section 
27. Uniform Child Custody Jurisdiction and En- 
forcement Act 93-27-101 

TITLE 95. TORTS 

Chapter 1. Libel and Slander 95-1-1 

3. Nuisances 95-3-1 

5. Trespass 95-5-1 

7. Liability Exemption for Donors of Food 95-7-1 

9. Liability Exemption for Volunteers and Sports 

Officials 95-9-1 

11. Liability Exemption for Equine and Livestock 

Activities 95-11-1 

13. Liability Exemption for Noise Pollution by Sport- 
shooting Ranges 95-13-1 

TITLE 97. CRIMES 

Chapter 1. Conspiracy, Accessories and Attempts 97-1-1 

3. Crimes Against the Person 97-3-1 

5. Offenses Affecting Children 97-5-1 

7. Crimes Against Sovereignty or Administration of 

Government 97-7-1 

9. Offenses Affecting Administration of Justice .... 97-9-1 

11. Offenses Involving Public Officials 97-11-1 

13. Election Crimes 97-13-1 

15. Offenses Affecting Highways, Ferries and 

Waterways 97-15-1 

17. Crimes Against Property 97-17-1 

19. False Pretenses and Cheats 97-19-1 

21. Forgery and Counterfeiting 97-21-1 

23. Offenses Affecting Trade, Business and 

Professions 97-23-1 

25. Offenses Affecting Railroads, Public Utilities and 

Carriers 97-25-1 

27. Crimes Affecting Public Health 97-27-1 

29. Crimes Against Public Morals and Decency 97-29-1 

31. Intoxicating Beverage Offenses 97-31-1 

32. Tobacco Offenses 97-32-1 

33. Gambling and Lotteries 97-33-1 

35. Crimes Against Public Peace and Safety 97-35-1 

37. Weapons and Explosives 97-37-1 

39. Dueling 97-39-1 

41. Cruelty to Animals 97-41-1 



xliv 



General Outline 

TITLE 97. CRIMES (Cont'd) 

Beginning 
Section 

43. Racketeer Influenced and Corrupt Organization 

Act (RICO) 97-43-1 

44. Mississippi Streetgang Act 97-44-1 

45. Computer Crimes and Identity Theft 97-45-1 

TITLE 99. CRIMINAL PROCEDURE 

Chapter 1. General Provisions; Time Limitations; Costs ... 99-1-1 

3. Arrests 99-3-1 

5. Bail 99-5-1 

7. Indictment 99-7-1 

9. Process 99-9-1 

11. Jurisdiction and Venue 99-11-1 

13. Insanity Proceedings 99-13-1 

15. Pretrial Proceedings 99-15-1 

17. Trial 99-17-1 

18. Mississippi Capital Defense Litigation Act 99-18-1 

19. Judgment, Sentence, and Execution 99-19-1 

20. Community Service Restitution 99-20-1 

21. Fugitives From Other States 99-21-1 

23. Peace Bonds 99-23-1 

25. Forms 99-25-1 

27. Proceedings for Intoxicating Beverage Offenses 99-27-1 

29. Vagrancy Proceedings 99-29-1 

31. Obscene Publications Proceedings [Repealed] .. 99-31-1 

33. Prosecutions Before Justice Court Judges 99-33-1 

35. Appeals 99-35-1 

36. Victim Assistance Coordinator 99-36-1 

37. Restitution to Victims of Crimes 99-37-1 

38. Crime Victim's Escrow Account Act 99-38-1 

39. Post-Conviction Proceedings 99-39-1 

41. Mississippi Crime Victims' Compensation Act .. 99-41-1 

43. Mississippi Crime Victims' Bill of Rights 99-43-1 



xlv 



MISSISSIPPI CODE 
1972 



ANNOTATED 



VOLUME TWENTY 



TITLE 91 
TRUSTS AND ESTATES 

Chapter 1. Descent and Distribution 91-1-1 

Chapter 3. Uniform Simultaneous Death Law 91-3-1 

Chapter 5. Wills and Testaments 91-5-1 

Chapter 7. Executors and Administrators 91-7-1 

Chapter 9. Trusts and Trustees 91-9-1 

Chapter 11. Fiduciary Security Transfers 91-11-1 

Chapter 13. Fiduciary Investments 91-13-1 

Chapter 15. Release of Powers of Appointment 91-15-1 

Chapter 17. Uniform Principal and Income Law 91-17-1 

Chapter 19. Gifts to Minors. [Repealed] 

Chapter 20. Transfers to Minors 91-20-1 

Chapter 21. Uniform Transfer-on-Death Security Registration Act 91-21-1 

CHAPTER 1 
Descent and Distribution 

Sec. 

91-1-1. What law to govern. 

91-1-3. Descent of land. 

91-1-5. Half-bloods. 

91-1-7. Descent of property as between husband and wife. 

91-1-9. Descent of trust estates. 

91-1-11. Personal estate to descend as real estate. 

91-1-13. Estate of testator not disposed of by will to descend. 

91-1-15. Descent among illegitimates; definitions. 

91-1-17. Advancement to be brought into hotchpot. 

91-1-19. Descent of exempt property. 

91-1-21. Exempt property liable for debt of decedent. 

91-1-23. Exempt property not to be partitioned in certain cases. 

91-1-25. Person who has killed another not to inherit from him. 

91-1-27. How title to property acquired by descent may be made. 

91-1-29. Heirs to be cited to appear. 

91-1-31. Judgment as to descent of property cannot be assailed collaterally 
except for fraud. 



91-1-1 



Trusts and Estates 



§ 91-1-1. What law to govern. 

All personal property situated in this state shall descend and be distrib- 
uted according to the laws of this state regulating the descent and distribution 
of such property, regardless of all marital rights which may have accrued in 
other states, and notwithstanding the domicile of the deceased may have been 
in another state, and whether the heirs or persons entitled to distribution be 
in this state or not. The widow of such deceased person shall take her share in 
the personal estate according to the laws of this state. 

SOURCES: Codes, 1857, ch. 60, art. 110; 1871, § 1950; 1880, § 1270; 1892, § 1542; 
Laws, 1906, § 1648; Hemingway's 1917, § 1380; Laws, 1930, § 1401; Laws, 
1942, § 467. 

Cross References — Computation of relationship according to civil law, see 
§§ 1-3-71, 1-3-73. 
Refund of federal and state taxes to survivor of deceased, see § 27-73-9. 
Petition to establish title of property acquired by descent, see §§ 91-1-27 et seq. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

2. Application. 

3. — Particular personalty. 

1. In general. 

Courts cannot ingraft exceptions on the 
statute. Williams v. Lee, 130 Miss. 481, 94 
So. 454, 28 A.L.R. 1124 (1923). 

Wife not estopped by silence with 
knowledge of pretended second marriage 
to assert right of inheritance. Williams v. 
Lee, 130 Miss. 481, 94 So. 454, 28 A.L.R. 
1124 (1923). 

Payment of debt having situs in Missis- 
sippi to foreign administrator is no de- 
fense against heirs. Richardson v. Neblett, 
122 Miss. 723, 84 So. 695, 10 A.L.R. 272 
(1920). 

The effect of the statute is to abolish 
ancillary administrations in this state al- 
together. Carroll v. McPike, 53 Miss. 569 
(1876); Partee v. Kortrecht, 54 Miss. 66 
(1876). 

The statute makes the local law the rule 
of distribution. Wilson v. Cox, 49 Miss. 538 
(1873). 

2. Application. 

Although the Uniform Commercial 
Code may govern whether a certificate of 
deposit passes to the estate or under a 
presumed joint tenancy, it does not deter- 



mine who takes a certificate of deposit 
once it is in the estate. Matter of 
Zimmerman v. Corely, 519 So. 2d 430 
(Miss. 1988). 

But where the owner of the debt so 
deals with it as to establish an intention to 
locate it here, or if the debt arose as an 
incident to a business conducted in this 
state, the statute applies. Jahier v. 
Rascoe, 62 Miss. 699 (1885). 

The statute does not per se localize here 
all debts which are due by residents of this 
state to persons domiciled out of it. Speed 
v. Kelly, 59 Miss. 47 (1881). 

The statute applies in cases of partial 
intestacy. Wilson v. Cox, 49 Miss. 538 
(1873). 

The statute applies only to the estates 
of intestates. The renunciation of a will by 
a widow will not make the statute appli- 
cable. Slaughter v. Garland, 40 Miss. 172 
(1866). 

3. — Particular personalty. 

Stock in Mississippi corporation, owned 
by person domiciled in Minnesota at the 
time of death, has its situs in Mississippi, 
and distribution is controlled by law of the 
state. Ewing v. Warren, 144 Miss. 233, 109 
So. 601 (1926). 

Money, deposited in a bank within the 
state, belonging to person domiciled in 



Descent and Distribution 



§ 91-1-3 



another state at time of death, will be 
distributed under Mississippi law. Ewing 
v. Warren, 144 Miss. 233, 109 So. 601 
(1926). 

Rent on land in Mississippi is a debt 
governed by its laws. Richardson v. 
Neblett, 122 Miss. 723, 84 So. 695, 10 
A.L.R. 272 (1920). 

Descent of the leasehold interest in 
school lands situated within the state, 
owned by testatrix domiciled outside of 
the state, is to be governed by the laws of 
the state, and of legacy of such interest 
lapses on the death of the legatee without 
children, though under the statute of the 
domicile of testatrix it would not lapse. 
Neblett v. Neblett, 112 Miss. 550, 73 So. 
575 (1916). 



Stock of Mississippi bank owned by non- 
resident had situs in Mississippi and was 
liable to claims of creditors of estate, and 
was not exempt to widow. Jane v. 
Martinez, 104 Miss. 208, 61 So. 177 
(1913). 

The personal estate of a young unmar- 
ried man who leaves his parental home in 
another state and in search of health, or a 
suitable field of labor, acquires a domicile 
in this state but abandons it and returns 
to his original domicile, is not distribut- 
able according to the laws of this state. 
Mayo v. Equitable Life Assurance Soc'y, 71 
Miss. 590, 15 So. 791 (1894). 



RESEARCH REFERENCES 



ALR. Conflict of laws regarding election 
for or against will, and effect in one juris- 
diction of election in another. 69 A.L.R.3d 
1081. 

Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution §§ 12, 13. 

CJS. 26B C J.S., Descent and Distribu- 
tion §§ 6, 7. 

Law Reviews. 1987 Mississippi Su- 
preme Court Review, Wills and estates. 57 
Miss. L. J. 542, August, 1987. 

1987 Mississippi Supreme Court Re- 
view, Trusts. 57 Miss. L. J. 555, August, 
1987. 

Weems and Evans, Mississippi law of 
intestate succession, wills, and adminis- 
tration and the proposed Mississippi Uni- 
form Probate Code: a comparative analy- 
sis. 62 Miss. L. J. 1, Spring, 1992. 

Practice References. Robinson and 
Mobley, Pritchard on the Law of Wills and 



Administration of Estates, Fifth Edition 
(Michie). 

Burke, Friel, and Gagliardi, Modern Es- 
tate Planning, Second Edition (Matthew 
Bender). 

Freeman and Rapkin, Planning for 
Large Estates (Matthew Bender). 

Schoenblum, Estate Planning Forms 
and Clauses with CD Rom (Anderson Pub- 
lishing). 

Christensen, International Estate Plan- 
ning, Second Edition (Matthew Bender). 

Murphy's Will Clauses: Annotations 
and Forms with Tax Effects (Matthew 
Bender). 

Nossaman and Wyatt, Trust Adminis- 
tration and Taxation (Matthew Bender). 

Bickel, Living Trusts: Forms and Prac- 
tice (Matthew Bender). 

Estate Planning Package (CD-ROM) 
(LexisNexis). 



§ 91-1-3. Descent of land. 

When any person shall die seized of any estate of inheritance in lands, 
tenements, and hereditaments not devised, the same shall descend to his or 
her children, and their descendants, in equal parts, the descendants of the 
deceased child or grandchild to take the share of the deceased parent in equal 
parts among them. When there shall not be a child or children of the intestate 
nor descendants of such children, then to the brothers and sisters and father 
and mother of the intestate and the descendants of such brothers and sisters 
in equal parts, the descendants of a sister or brother of the intestate to have in 



§ 91-1-3 



Trusts and Estates 



equal parts among them their deceased parent's share. If there shall not be a 
child or children of the intestate, or descendants of such children, or brothers 
or sisters, or descendants of them, or father or mother, then such estate shall 
descend, in equal parts, to the grandparents and uncles and aunts, if any there 
be; otherwise, such estate shall descend in equal parts to the next of kin of the 
intestate in equal degree, computing by the rules of the civil law. There shall 
not be any representation among collaterals, except among the descendants of 
the brothers and sisters of the intestate. 

SOURCES: Codes, Hutchinson's 1848, ch. 44, art. 2 (50); 1857, ch. 60, art. 110; 
1871, § 1948; 1880, § 1271; 1892, § 1543; Laws, 1906, § 1649; Hemingway's 
1917, § 1381; Laws, 1930, § 1402; Laws, 1942, § 468; Laws, 1952, ch. 252, § 1. 

Cross References — Computation of relationship according to civil law, see 
§§ 1-3-71, 1-3-73. 
Fraudulently producing child with intent to intercept inheritance, see § 97-19-45. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. Construction and application in gen- 

eral. 

2. Application in particular circum- 

stances. 

3. — Relatives of half blood. 

4. — Exempt property. 

1. Construction and application in 
general. 

Under Miss. Code Ann. § 91-1-3, since 
decedent had no spouse or children, his 
heirs at law were his brother, sisters, 
mother and the descendants of his de- 
ceased brother and sister in equal parts; 
the decedent's illegitimate children, hav- 
ing failed to file suit to determine legiti- 
macy within the limitation period, had 
made moot any consideration of whether 
or not they were legitimate heirs. In re 
Estate of Thomas, — So. 2d — , 2003 Miss. 
App. LEXIS 996 (Miss. Ct. App. Oct. 28, 
2003). 

Collateral heirs, under statute of de- 
scent and distribution for real property, 
may take only if there is no surviving 
spouse or child. Daniel v. Snowdoun Ass'n, 
513 So. 2d 946 (Miss. 1987). 

The nephews and nieces of an intestate 
decedent, who were children of his whole- 
blood brothers, succeeded to his entire 
estate to the exclusion of his half-blood 
sister, under §§ 91-1-5 and 91-1-3, since 
his whole-blood brothers would have been 
his sole and only surviving legal heirs to 



the exclusion of his half-blood sister, and 
their children occupied the same position 
as their parents, by right of representa- 
tion. Jones v. Stubbs, 434 So. 2d 1362, 47 
A.L.R.4th 555 (Miss. 1983). 

A claim of inheritance based upon an 
alleged oral contract of adoption made 
many years prior to the death of the 
intestate, will not be recognized. Brassiell 
v. Brassiell, 228 Miss. 243, 87 So. 2d 699 
(1956). 

Husband is heir of wife, but not of wife's 
parents, and he inherits no interest in 
lands of wife's parents where wife prede- 
ceased parents, children of wife inheriting 
share of their mother. Dunaway v. 
McEachern, 37 So. 2d 767 (Miss. 1948). 

The statutes on descent and distribu- 
tion are not suspended by, and have no 
application to, the refusal of a court to set 
aside a divorce decree in an action brought 
by the surviving party to the divorce ac- 
tion. Stanley v. Stanley, 201 Miss. 545, 29 
So. 2d 641 (1947). 

The right of an heir to the estate of a 
deceased person does not originate in the 
lifetime of the decedent. Covington v. 
Frank, 77 Miss. 606, 27 So. 1000 (1900). 

In a suit by the creditor of a deceased 
person to foreclose a mortgage, persons 
whose heirship is denied are competent 
witnesses to prove relationship. Coving- 
ton v. Frank, 77 Miss. 606, 27 So. 1000 
(1900). 



Descent and Distribution 



§ 91-1-3 



An equitable right to a cause of action 
on a debt accruing to two or more persons 
by descent from the creditor is a joint 
right. Stauffer v. British & Am. Mtg. Co., 
77 Miss. 127, 25 So. 299 (1899). 

Preference is not given by the statute to 
relations of one side over those of the 
other. Doe ex rel. Hickey v. Gilbert, 2 Miss. 
(1 Howard) 32 (1834). 

2. Application in particular circum- 
stances. 

Question of whether party asserting in- 
terest in property, which had been inher- 
ited through Mississippi laws of descent 
and distribution, should be prohibited in 
equity from doing so was not appropriate 
matter for decision on motion for sum- 
mary judgment, where heir at law did not 
intend to relinquish any inherited rights 
by signing final estate decree and signed 
for sole purpose of settling will contest 
between children and widow, where evi- 
dence existed that persons taking under 
estate decree also knew of and recognized 
interest of heir at law in property, and he 
took action to assert his interest in that 
property. Sumrall v. Doggett, 511 So. 2d 
908 (Miss. 1987). 

When a person dies intestate his or her 
property passes in the manner provided 
by this section [Code 1942, § 468], unless 
there has been a statutory adoption of the 
child claiming the right of inheritance, 
and in the manner provided by the statute 
of adoption then in force. Brassiell v. 
Brassiell, 228 Miss. 243, 87 So. 2d 699 
(1956). 

Where a testator bequeathed a portion 
of his estate to his brothers and sisters, 
with a share of any of brother or sister 
predeceasing the testator to go to his 
surviving child living at the time of the 
testator's death, but provided also that 
where a brother or sister left no children 
the share should go to surviving brothers 
and sisters in equal shares, and where 
none of his brothers and sisters survived 
the testator, a bequest to his sister who 
left no children surviving her, lapsed. 
Meyers v. Teichman, 219 Miss. 860, 70 So. 
2d 17 (1954). 

Where the grantor conveyed land to his 
daughter for and during her natural life 
and after her death the remainder in fee 
simple of children of her body, and the 



daughter had two children who prede- 
ceased her, but left children of her own 
surviving them, and the daughter died 
intestate, the grandchildren of the daugh- 
ter took fee simple estate per stirpes and 
not per capita. Rodgers v. Rodgers, 218 
Miss. 655, 67 So. 2d 698, 40 A.L.R.2d 254 
(1953). 

A chart sets forth relationships and de- 
grees of kindred according to the civil law. 
Owen v. State, 255 Ala. 354, 51 So. 2d 541 
(Ala. 1951). 

Title remained in grantor after execut- 
ing deed of trust, and, on his death, prop- 
erty descended to his heirs. Wright v. 
Wright, 160 Miss. 235, 134 So. 197 (1931). 

Where land was devised by will to a 
husband for life and he died before the 
testatrix, there being no life estate in the 
property at the time of her death, it vested 
at once on her death in her legal heirs. 
Harvey v. Johnson, 111 Miss. 566, 71 So. 
824 (1916). 

Where an intestate decedent left surviv- 
ing uncles and aunts and cousins the 
descendants of aunts, who had died in his 
lifetime, the uncles and aunts inherited 
his property to the exclusion of his cous- 
ins, under this section [Code 1942, § 468]. 
Grantham v. Statham, 83 Miss. 176, 35 
So. 423 (1903). 

3. — Relatives of half blood. 

Second cousins of the whole blood and a 
first cousin of the half blood were collat- 
eral kindred to the intestate, as against 
the contention that descendants of first 
cousins of the whole blood should take to 
the exclusion of a first cousin of the half 
blood. Toomey v. Turner, 184 Miss. 831, 
186 So. 301 (1939). 

Surviving parent of an unmarried intes- 
tate dying without issue inherited his real 
estate to the exclusion of his half-blood 
kindred. Aycock v. Aycock, 119 Miss. 641, 
81 So. 482 (1919). 

Illegitimate son of sister of whole blood 
took intestate's personalty to exclusion of 
children of sister of half blood. Davidson v. 
Brownlee, 114 Miss. 398, 75 So. 140 
(1917). 

4. — Exempt property. 

Bill attempting partition of exempt 
lands without widow's consent, not de- 
murrable where it also asks accounting 



§ 91-1-5 



Trusts and Estates 



for timber cut by widow. Gavin v. Gavin, 
116 Miss. 197, 76 So. 879 (1917). 

Homestead not subject to an execution 
for alimony. Jackson v. Coleman, 115 
Miss. 535, 76 So. 545 (1917). 

Consent of widow without which ex- 
empt property cannot be partitioned, be- 
ing without consideration, may be with- 
drawn in the absence of intervening 
estoppel, any time before the property has 
been divided. Tiser v. McCain, 113 Miss. 
776, 74 So. 660 (1917). 



Exempt property of decedent descend- 
ing to the widow with others is used by 
her so long as its income is used for her 
support, whether or not she resides on it. 
Tiser v. McCain, 113 Miss. 776, 74 So. 660 
(1917). 

Bill for partition, alleging land not 
homestead nor exempt, held good against 
demurrer. Tiser v. McCain, 113 Miss. 776, 
74 So. 660 (1917). 



RESEARCH REFERENCES 



ALR. Descent and distribution to and 
among cousins. 54 A.L.R.2d 1009. 

Descent and distribution to and among 
uncles and aunts. 55 A.L.R.2d 643. 

Descent and distribution from steppar- 
ents to stepchildren or vice versa. 63 
A.L.R.2d 303. 

Right of heir or devisee to have realty 
exonerated from lien thereon at expense 
of personal estate. 4 A.L.R.3d 1023. 

Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution § 18. 



Am. Jur. 2d, Desk Book, Document No. 
184, Tables of descent and distribution — 
computation of degrees of kindred. 

8A Am. Jur. PI & Pr Forms (Rev), De- 
scent and Distribution, Forms 1 et seq. 
(petition or application — determination 
of heirship). 

CJS. 26B C.J.S., Descent and Distribu- 
tion §§ 6, 7. 



§ 91-1-5. Half-bloods. 

There shall not be, in any case, a distinction between the kindred of the 
whole and half-blood, except that the kindred of the whole-blood, in equal 
degree, shall be preferred to the kindred of the half-blood in the same degree. 

SOURCES: Codes, Hutchinson's 1848, ch. 44, art. 2 (50); 1857, ch. 60, art. 110; 
1871, § 1949; 1880, § 1271; 1892, § 1544; Laws, 1906, § 1650; Hemingway's 
1917, § 1382; Laws, 1930, § 1403; Laws, 1942, § 469. 

Cross References — Proceedings pertaining to trusts and estates, see Miss. R. Civ. 
P. 81. 



JUDICIAL DECISIONS 



1. In general. 

2. Applicability to illegitimates. 

1. In general. 

The nephews and nieces of an intestate 
decedent, who were children of his whole- 
blood brothers, succeeded to his entire 
estate to the exclusion of his half-blood 
sister, under §§ 91-1-5 and 91-1-3, since 
his whole-blood brothers would have been 



his sole and only surviving legal heirs to 
the exclusion of his half-blood sister, and 
their children occupied the same position 
as their parents, by right of representa- 
tion. Jones v. Stubbs, 434 So. 2d 1362, 47 
A.L.R.4th 555 (Miss. 1983). 

Under the rule of the civil law, a first 
cousin, although of the half-blood, is 
nearer in degree of kindred to an intestate 



Descent and Distribution 



§ 91-1-5 



than a second cousin of the whole-blood. 
Mississippi State Hwy. Dep't v. Meador, 
184 Miss. 381, 185 So. 816 (1939). 

Term "brothers and sisters" embraces 
brothers and sisters of whole and half- 
blood. Darrow v. Moore, 163 Miss. 705, 
142 So. 447 (1932). 

Surviving parent of unmarried intes- 
tate took his real estate to the exclusion of 
half-blood kindred. Aycock v. Aycock, 119 
Miss. 641, 81 So. 482 (1919). 

The descendants of the brothers and 
sisters of the whole-blood take in exclu- 
sion of the brothers and sisters of the 
half-blood. Scott v. Terry, 37 Miss. 65 
(1859). 

By the common law, the kindred of the 
half-blood could not inherit real property. 
The object of the statute was to change 
that rule. Those of the whole-blood are 
preferred to those of the half-blood; but if 
there be none of the whole-blood, then 
those of the half-blood inherit. Fatheree v. 
Fatheree, 1 Miss. (1 Walker) 311 (1828); 
Hulme v. Montgomery, 31 Miss. 105 
(1856). 

2. Applicability to illegitimates. 

Where proponents of a will never denied 
that contestants were the natural grand- 
children of the testator, and where, al- 
though there was no record of a divorce 
between the testator's son, through whom 
the grandchildren sought to inherit, and 
his first wife, there was a ceremonial 
marriage between the son and his second 
wife, from which union the grandchildren 
were born, there was no impediment to 
their inheriting as lawful heirs-at-law of 
the testator's son. Webster v. Kennebrew, 
443 So. 2d 850 (Miss. 1983). 

This section [Code 1942, § 469] and 
Code 1942, § 474, are in pari materia and 



should be construed together. Taylor v. 
Jackson, 194 Miss. 441, 12 So. 2d 144 
(1943). 

This statute is applicable to 
illegitimates as well as to legitimates 
when determining blood relationship for 
the purpose of inheritance, and permits 
the rights of illegitimates inter sese to be 
determined on the same basis as if they 
were legitimate and some of them were 
related to the intestate as of the whole- 
blood and some of the half-blood. Taylor v. 
Jackson, 194 Miss. 441, 12 So. 2d 144 
(1943). 

Where it appeared that the father of an 
intestate and the mothers of several 
groups of claimants to intestate's property 
were all illegitimate children of the same 
mother, but that the mother of one group 
had the same father as the intestate's 
father, the latter group was entitled to 
take the property to exclusion of the other 
groups of claimants, since, although chil- 
dren of an illegitimate, they were kindred 
of the whole-blood to the intestate, while 
the other groups, also being children of 
illegitimates, were kindred of the half- 
blood by reason of their mothers having a 
different father. Taylor v. Jackson, 194 
Miss. 441, 12 So. 2d 144 (1943). 

The legitimate children of an illegiti- 
mate father were entitled to inherit from 
the half-sister of their father, who died 
intestate, regardless of whether such half- 
sister was legitimate or illegitimate, 
where the intestate had no kindred of the 
whole-blood. Malone v. Pope, 189 Miss. 46, 
196 So. 319 (1940). 

Illegitimate son of sister of whole-blood 
took intestate's personalty to exclusion of 
children of sister of half-blood. Davidson v. 
Brownlee, 114 Miss. 398, 75 So. 140 
(1917). 



RESEARCH REFERENCES 



ALR. Descent and distribution: rights 
of inheritance as between kindred of 
whole and half blood. 47 A.L.R.4th 561. 

Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution §§ 71, 104-106. 

9 Am. Jur. Proof of Facts, Pedigree, 
Proof No. 1 (establishing family relation- 



ship — testimony of party whose pedigree 
is in issue). 

9 Am. Jur. Proof of Facts, Pedigree, 
Proof No. 2 (establishing family relation- 
ship — testimony of third person). 



§ 91-1-7 



Trusts and Estates 



§ 91-1-7. Descent of property as between husband and wife. 

If a husband die intestate and do not leave children or descendants of 
children, his widow shall be entitled to his entire estate, real and personal, in 
fee simple, after payment of his debts; but where the deceased husband shall 
leave a child or children by that or a former marriage, or descendants of such 
child or children, his widow shall have a child's part of his estate, in either case 
in fee simple. If a married woman die owning any real or personal estate not 
disposed of, it shall descend to her husband and her children or their 
descendants if she have any surviving her, either by a former husband or by 
the surviving husband, in equal parts, according to the rules of descent. If she 
have children and there also be descendants of other children who have died 
before the mother, the descendants shall inherit the share to which the parent 
would have been entitled if living, as coheirs with the surviving children. If she 
have no children or descendants of them, then the husband shall inherit all of 
her property. 

SOURCES: Codes, Hutchinson's 1848, ch. 44, art. 3, 4; 1857, ch. 17, art. 1; 1871, 
§ 1788; 1880, § 1771; 1892, § 1545; Laws, 1906, § 1651; Hemingway's 1917, 
§ 1383; Laws, 1930, § 1404; Laws, 1942, § 470. 

Cross References — Provision in will for husband or wife, see §§ 91-5-23 et seq. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general; legality of marriage. 

2. Rights of widow. 

3. Rights of widower. 

4. Rights of children. 

5. Divorce or separation as affecting 

rights of surviving spouse. 

1. In general; legality of marriage. 

No right to property vests by virtue of 
the marriage relationship alone prior to 
entry of a judgment or decree granting 
equitable or other distribution pursuant 
to dissolution of the marriage; thus, the 
rights of alienation and the laws of de- 
scent and distribution are not affected by 
the recognition of marital assets. Fergu- 
son v. Ferguson, 639 So. 2d 921 (Miss. 
1994). 

While this statute [Code 1972, § 91-1-7] 
controls the general descent of property as 
between husband and wife, the statute is 
not applicable to the descent of exempt 
property; Code 1972, § 91-1-19 specifi- 
cally controls the descent of exempt prop- 
erty. Weaver v. Blackburn, 294 So. 2d 786 
(Miss. 1974). 



In the absence of proof of a subsequent 
bigamous marriage which could work an 
estoppel, one spouse is not barred from 
inheriting from the other on account of his 
or her abandonment, desertion, nonsup- 
port, or adultery, and evidence of a wife's 
adulterous conduct did not preclude her 
from taking her deceased husband's es- 
tate as his sole heir at law. Rowell v. 
Rowell, 251 Miss. 472, 170 So. 2d 267, 13 
A.L.R.3d 477 (1964). 

Where testator's intention was that a 
class described as his heirs should be 
ascertained at the termination of a life 
estate given his widow, she does not take 
in virtue of this section [Code 1942, 
§ 470]. Dailey v. Houston, 246 Miss. 667, 
151 So. 2d 919 (1963). 

One who enters into a ceremonial mar- 
riage with another without obtaining a 
divorce from a former spouse is estopped 
from asserting a right to inherit from such 
former spouse. Harrison v. G. & K. Inv. 
Co., 238 Miss. 760, 115 So. 2d 918 (1959), 
cert, denied, 363 U.S. 844, 80 S. Ct. 1614, 
4 L. Ed. 2d 1728 (1960). 



8 



Descent and Distribution 



§ 91-1-7 



Third ceremonial wife of deceased and 
his only child, the child of first ceremonial 
wife, are entitled to share deceased's es- 
tate equally under laws of descent and 
distribution in this state, when presump- 
tion that all prior marriages of deceased 
had been dissolved prior to third ceremo- 
nial marriage is not overcome by compe- 
tent evidence to contrary. Wallace v. Her- 
ring, 207 Miss. 658, 43 So. 2d 100 (1949). 

Marriage between white person and Ne- 
gro valid in the State of Illinois where it 
was contracted and the parties continued 
to live, will be recognized in this state to 
the extent of permitting one spouse to 
inherit property from the other in this 
state. Miller v. Lucks, 203 Miss. 824, 36 
So. 2d 140, 3 A.L.R.2d 236 (1948). 

Code of 1892, §§ 4496, 1545 (Code 
1942, §§ 668, 470), must be construed 
together in determining rights of widow 
renouncing will. Callicott & Norfleet v. 
Callicott, 90 Miss. 221, 43 So. 616 (1907). 

Where testator had portioned off to and 
accepted releases from 3 of his 6 children, 
widow upon renouncing will was entitled 
to a one-fourth part of the estate. Callicott 
& Norfleet v. Callicott, 90 Miss. 221, 43 So. 
616 (1907). 

2. Rights of widow. 

The recording of a deed from the defen- 
dants' predecessor's widow to the com- 
plainants' predecessor was the equivalent 
of actual knowledge by the defendant 
heirs that the complainants' predecessor 
claimed adversely to them, where by its 
terms the deed purported to convey the 
entire interest, and the legal presumption 
that one cotenant holds property for the 
benefit of his cotenants as well as for 
himself was refuted and an ouster was 
affected. Hardy v. Lynch, 258 So. 2d 414 
(Miss. 1972). 

Where a cotenant's widow in possession 
claimed the property to the exclusion of 
the other cotenants for more than 10 years 
after the death of her husband, who had 
claimed the entirety of the property, and 
during such period the widow had re- 
ceived all benefits flowing from the land 
and had made all expenditures without 
accounting to anyone, there was the 
equivalent of an ouster of the other 
cotenants and she had clear full title by 
adverse possession, the fiduciary relation- 



ship usually presumed to exist between 
cotenants having no application here; 
since the circumstances surrounding the 
widow's acquisition of title completely ne- 
gated any such relation to the extent that 
it was the equivalent of an ouster of the 
other cotenants. Bayless v. Alexander, 245 
So. 2d 17 (Miss. 1971). 

Where a husband and wife lived to- 
gether for approximately 40 years, had no 
children, and where the husband prede- 
ceased the wife by approximately eight 
years, the wife became the owner of the 
property of her husband and had every 
right to devise it in any manner that she 
desired so long as the devise was not 
contrary to public policy, and the fact that 
her holographic will referred to a request 
of her husband, was no more than an 
explanation as to her reason for devising 
the property as she did, and was not an 
expression of the testamentary intent of 
the husband. Carlisle v. Estate of Carlisle, 
233 So. 2d 803 (Miss. 1970). 

Evidence of a wife's adulterous conduct 
did not preclude her from taking her de- 
ceased husband's estate as his sole heir at 
law. Rowell v. Rowell, 251 Miss. 472, 170 
So. 2d 267, 13 A.L.R.3d 477 (1964). 

A Tennessee court decree adjudging 
complainant to be the widow of the de- 
ceased and awarding her $6,000 in full 
settlement of any and all rights in the 
decedent's estate and all rights to dower 
and homestead in the decedent's real 
property, and which vested out of com- 
plainant all interest in the described Ten- 
nessee real property, but made no mention 
of decedent's real property located in Mis- 
sissippi, did not deprive complainant of 
her fee simple title to the Mississippi 
property, which she had acquired upon the 
death of a life tenant since the decedent 
left no children. Gillum v. Gillum, 230 
Miss. 246, 92 So. 2d 665 (1957). 

Where the husband, as devisee under 
his mother's will, had been vested at the 
time of his death with a fee simple title to 
a one-fourth interest in a plantation, his 
wife succeeded to that interest. Martin v. 
Eslick, 229 Miss. 234, 90 So. 2d 635 
(1956), corrected, 229 Miss. 261, 92 So. 2d 
244 (1957). 

Wife as devisee of the usufruct of land 
under husband's will, which made no fur- 



9 



§ 91-1-7 



Trusts and Estates 



ther disposition, held entitled to absolute 
estate as heir upon death of husband 
without children or descendants. Lemon v. 
Rogge, 11 So. 470 (Miss. 1892). 

3. Rights of widower. 

Decedent's husband was entitled to in- 
herit an interest in land owned by his 
wife, even though he had entered into a 
consent decree in Michigan in which he 
relinquished his rights as heir of his wife, 
where the parties did not intend the Mich- 
igan decree to cover Mississippi lands; the 
testimony of husband that he shot his wife 
accidentally was properly admitted in ev- 
idence as an exception to the dead man's 
statute; insofar as the shooting was not 
wilful, the husband was not barred from 
inheriting by statute. Bianchi v. Scott, 363 
So. 2d 289 (Miss. 1978). 

Devise of a life estate in the whole of the 
property to husband does not militate 
against his inheriting a fraction of the 
remaining fee simple title which was not 
disposed of by the will. Williams v. Gooch, 
208 Miss. 223, 44 So. 2d 57 (1950). 

Where testatrix devised a life estate in 
land to her husband then gave 50 per cent 
of the remainder in fee to two others 
leaving 50 per cent undisposed of, the 
undevised 50 per cent in fee descended to 
husband as sole heir at law of testatrix. 
Williams v. Gooch, 208 Miss. 223, 44 So. 
2d 57 (1950). 

Husband is heir of wife, but not of wife's 
parents, and he inherits no interest in 
lands of wife's parents where wife prede- 
ceased parents, children of wife inheriting 
share of their mother. Dunaway v. 
McEachern, 37 So. 2d 767 (Miss. 1948). 

Estate by curtesy abolished in 1880, 
and subsequent to that date land of wife 
passed to husband and children as ten- 
ants in common, and conveyance by hus- 
band vested grantee with an undivided 
interest. Hauer v. Davidson, 113 Miss. 
696, 74 So. 621 (1917). 

4. Rights of children. 

Son, one of ten adult heirs of deceased 
father, who paid to his mother $400 which 
was owing to father on purchase of home- 
stead, there being no administrator and 
no agent appointed by heirs authorized to 
receive payment, is not entitled to be 
credited with $250 paid to mother as al- 



lowance to widow, as widow had only a 
one-tenth interest in this $400, in suit in 
which heirs claim balance due them on 
purchase price of land. Davis v. Davis, 205 
Miss. 794, 39 So. 2d 486 (1949), error 
overruled 205 Miss. 794, 40 So. 2d 156. 

Unadopted illegitimate child of de- 
ceased veteran who, while in army, de- 
clared in writing that child was his in 
order to obtain allotment for her, held not 
entitled to inherit share payable under 
veteran's war risk policy as "heir" within 
World War Veterans' Act construed in con- 
nection with Mississippi laws of descent 
and distribution, there being no conflict 
between federal and state laws. Moyse v. 
Laughlin, 177 Miss. 751, 171 So. 784 
(1937). 

Word "child" means child with right to 
share in estate of intestate father; it does 
not include children portioned off or who 
have released their interest in the estate. 
Callicott & Norfleet v. Callicott, 90 Miss. 
221, 43 So. 616 (1907). 

Children cannot have partition of ex- 
empt property while occupied or used by 
widow, nor an accounting by her for its 
use. Stevens v. Wilbourn, 88 Miss. 514, 41 
So. 66 (1906). 

5. Divorce or separation as affecting 
rights of surviving spouse. 

A decree of divorce from an insane wife, 
obtained by a husband who had previ- 
ously entered into a ceremonial marriage 
with another, will not be disregarded in 
determining whether the husband may 
inherit because obtained to avoid a prose- 
cution for bigamy. Harrison v. G. & K. Inv. 
Co., 238 Miss. 760, 115 So. 2d 918 (1959), 
cert, denied, 363 U.S. 844, 80 S. Ct. 1614, 
4 L. Ed. 2d 1728 (1960). 

Where the husband had legally married 
the intestate and they had lived together 
as man and wife in a home owned by the 
wife from the time of the marriage until 
two months prior to the wife's death when 
the husband left the home because of fear 
of the wife's brother, who had shot and 
driven the husband from the home, the 
husband was not estopped from asserting 
title to the home. Parsons v. Butler, 230 
Miss. 830, 94 So. 2d 320 (1957). 

Contract between husband and wife in 
contemplation of divorce, whereby wife 
released all claims for alimony or property 



10 



Descent and Distribution § 91-1-11 

adjustment, held not to have affected v. Kent, 172 Miss. 457, 160 So. 569, 99 
rights of wife as widow where divorce was A.L.R. 1303 (1935). 
not granted before husband's death. Kirby 

RESEARCH REFERENCES 

ALR. Validity and effect of will clause Conflict of laws regarding election for or 

disinheriting children if surviving spouse against will, and effect in one jurisdiction 

elects to take against will. 32 A.L.R.2d of election in another. 69 A.L.R.3d 1081. 

895. Effect of invalidity of provision condi- 

Right of illegitimate child to take under tioning testamentary gift upon divorce of 

testamentary gift to "children". 34 beneficiary, on alternative provision con- 

A.L.R.2d 4. ditioning gift upon spouse's death. 74 

Effect of divorce, separation, desertion, A.L.R.3d 1095. 

unfaithfulness, and the like, upon right to Devolution of gift over upon spouse pre- 

administer upon estate of spouse. 34 deceasing testator where gift to spouse 

A.L.R.2d 876. fails because of divorce. 74 A.L.R.3d 1108. 

Separation agreement as barring rights Rights in decedent's estate as between 

of surviving spouse in other's estate. 34 lawful and putative spouses. 81 A.L.R.3d 

A.L.R.2d 1020. 6. 

Abandonment, desertion, or refusal to Estoppel or laches precluding lawful 

support on part of surviving spouse as spouse from asserting rights in decedent's 

affecting marital rights in deceased estate as against putative spouse. 81 

spouse's estate. 13 A.L.R.3d 446. A.L.R.3d 110. 

Adultery on part of surviving spouse as Am Jur. 23 Am. Jur. 2d, Descent and 

affecting marital rights in deceased Distribution §§ 109 et seq. 

spouse's estate. 13 A.L.R.3d 486. CJS. 26B C.J.S., Descent and Distribu- 

Validity of inter vivos trust established tion §§ 60 et seq. 

by one spouse which impairs the other Law Reviews. 1978 Mississippi Su- 

spouse's distributive share or other statu- preme Court Review: Criminal Law and 

tory rights in property. 39 A.L.R.3d 14. Procedure. 50 Miss. L. J. 59, March 1979. 

§ 91-1-9. Descent of trust estates. 

If any cestui que trust shall die leaving a trust in lands, tenements, or 
hereditaments in fee simple or in freehold, the trust shall descend as real 
estate if not disposed of by will, or if not inconsistent with the declaration of the 
trust. 

SOURCES: Codes, 1880, § 1272; 1892, § 1546; Laws, 1906, § 1652; Hemingway's 
1917, § 1384; Laws, 1930, § 1405; Laws, 1942, § 471. 

Cross References — Proceedings pertaining to trusts and estates, see Miss. R. Civ. 
P. 81. 

§ 91-1-11. Personal estate to descend as real estate. 

When any person shall die possessed of goods and chattels or personal 
estate not bequeathed, the same shall descend to and be distributed among his 
or her heirs in the same manner that real estate not devised descends. 

SOURCES: Codes, Hutchinson's 1848, ch. 44, art. 2 (52); 1857, ch. 60, art. Ill; 
1871, § 1951; 1880, § 1273; 1892, § 1547; Laws, 1906, § 1653; Hemingway's 
1917, § 1385; Laws, 1930, § 1406; Laws, 1942, § 472. 

11 



§ 91-1-13 



Trusts and Estates 



Cross References — Proceedings pertaining to trusts and estates, see Miss. R. Civ. 
P. 81. 

JUDICIAL DECISIONS 



1. In general. 

The assignment to an insurance com- 
pany by the widow of a claim for the 
destruction of an automobile owned by her 
deceased husband does not give the as- 
signee any claim in preference to the 
creditors of the estate of the decedent. 
Potts v. Montgomery, 237 So. 2d 124 (Miss. 
1970). 

Where no administrator is appointed, 
personalty descends to heir as if realty. 
Richardson v. Neblett, 122 Miss. 723, 84 
So. 695, 10 A.L.R. 272 (1920). 

Illegitimate son of sister of whole-blood 
took intestate's personalty to exclusion of 



children of sister of half-blood. Davidson v. 
Brownlee, 114 Miss. 398, 75 So. 140 
(1917). 

The representatives of deceased heirs 
are entitled to share with the living heirs 
a sum of money appropriated by Congress 
to the administrator of their common an- 
cestor in payment of a claim against the 
government. Nutt v. Forsythe, 84 Miss. 
211, 36 So. 247 (1904). 

An equitable right to a cause of action 
on a debt accruing to two or more persons 
by descent from the creditor is a joint 
right. Stauffer v. British & Am. Mtg. Co., 
77 Miss. 127, 25 So. 299 (1899). 



RESEARCH REFERENCES 

Am Jur. 23 Am. Jur. 2d, Descent and CJS. 26B C.J.S., Descent and Distribu- 

Distribution §§ 20, 22. tion §§ 6, 7, 13. 

§ 91-1-13. Estate of testator not disposed of by will to de- 
scend. 

All estate, real and personal, not devised or bequeathed in the last will and 
testament of any person shall descend and be distributed in the same manner 
as the estate of an intestate; and the executor or administrator shall admin- 
ister the same accordingly. 

SOURCES: Codes, 1857, ch. 60, art. 112; 1871, § 1952; 1880, § 1274; 1892, § 1548; 
Laws, 1906, § 1654; Hemingway's 1917, § 1386; Laws, 1930, § 1407; Laws, 
1942, § 473. 

Cross References — Proceedings pertaining to trusts and estates, see Miss. R. Civ. 
P. 81. 

JUDICIAL DECISIONS 



1. In general. 

Devise of a life estate in the whole of the 
property to husband does not militate 
against his inheriting a fraction of the 
remaining fee simple title which was not 
disposed of by the will. Williams v. Gooch, 
208 Miss. 223, 44 So. 2d 57 (1950). 

Where testatrix devised a life estate in 
land to her husband then gave 50 per cent 
of the remainder in fee to two others 



leaving 50 per cent undisposed of, the 
undevised 50 per cent in fee descended to 
husband as sole heir at law of testatrix. 
Williams v. Gooch, 208 Miss. 223, 44 So. 
2d 57 (1950). 

In suit to confirm title to land, seeking 
construction of will to effect that it did not 
convey title to the land because it was 
devised to no named legatees, all the ben- 
eficiaries should have been under valid 



12 



Descent and Distribution § 91-1-15 

process. Dorsey v. Sullivan, 199 Miss. 602, rectly to heir the same as real property. 

24 So. 2d 852 (1946). Richardson v. Neblett, 122 Miss. 723, 84 

When no administrator is appointed, or So. 695, 10 A.L.R. 272 (1920). 
necessary, personal property descends di- 

§ 91-1-15. Descent among illegitimates; definitions. 

(1) The following terms shall have the meaning ascribed to them herein: 

(a) "Remedy" means the right of an illegitimate to commence and 
maintain a judicial proceeding to enforce a claim to inherit property from the 
estate of the natural mother or father of such illegitimate, said claim having 
been heretofore prohibited by law, or prohibited by statutes requiring 
marriage between the natural parents, or restrained, or enjoined by the 
order or process of any court in this state. 

(b) "Claim" means the right to assert a demand on behalf of an 
illegitimate to inherit property, either personal or real, from the estate of the 
natural mother or father of such illegitimate. 

(c) "Illegitimate" means a person who at the time of his birth was born 
to natural parents not married to each other and said person was not 
legitimized by subsequent marriage to said parents or legitimized through a 
proper judicial proceeding. 

(d) "Natural parents" means the biological mother or father of the 
illegitimate. 

(2) An illegitimate shall inherit from and through the illegitimate's 
mother and her kindred, and the mother of an illegitimate and her kindred 
shall inherit from and through the illegitimate according to the statutes of 
descent and distribution. However, if an illegitimate shall die unmarried and 
without issue, and shall also predecease the natural father, the natural mother 
or her kindred shall not inherit any part of the natural father's estate from or 
through the illegitimate. In the event of the death of an illegitimate, unmar- 
ried and without issue, any part of the illegitimate's estate inherited from the 
natural father shall be inherited according to the statutes of descent and 
distribution. 

(3) An illegitimate shall inherit from and through the illegitimate's 
natural father and his kindred, and the natural father of an illegitimate and 
his kindred shall inherit from and through the illegitimate according to the 
statutes of descent and distribution if: 

(a) The natural parents participated in a marriage ceremony before the 
birth of the child, even though the marriage was subsequently declared null 
and void or dissolved by a court; or 

(b) There has been an adjudication of paternity or legitimacy before the 
death of the intestate; or 

(c) There has been an adjudication of paternity after the death of the 
intestate, based upon clear and convincing evidence, in an heirship proceed- 
ing under Sections 91-1-27 and 91-1-29. However, no such claim of inheri- 
tance shall be recognized unless the action seeking an adjudication of 
paternity is filed within one (1) year after the death of the intestate or within 

13 



§ 91-1-15 Trusts and Estates 

ninety (90) days after the first publication of notice to creditors to present 
their claims, whichever is less; and such time period shall run notwithstand- 
ing the minority of a child. No claim of inheritance based on an adjudication 
of paternity, after death of the intestate, by a court outside the State of 
Mississippi shall be recognized unless: 

(i) Such court was in the state of residence of the intestate at the time 
of the intestate's death; 

(ii) The action adjudicating paternity was filed within ninety (90) 
days after the death of the intestate; 

(iii) All known heirs were made parties to the action; and 
(iv) Paternity or legitimacy was established by clear and convincing 
evidence. 

(d) The natural father of an illegitimate and his kindred shall not 
inherit: 

(i) From or through the child unless the father has openly treated the 
child as his, and has not refused or neglected to support the child. 

(ii) Any part of the natural mother's estate from or through the 
illegitimate if the illegitimate dies unmarried and without issue, and also 
predeceases the natural mother. In the event of the death of an illegiti- 
mate, unmarried and without issue, any part of the illegitimate's estate 
inherited from the mother shall be inherited according to the statutes of 
descent and distribution. 
A remedy is hereby created in favor of all illegitimates having any claim 
existing prior to July 1, 1981, concerning the estate of an intestate whose 
death occurred prior to such date by or on behalf of an illegitimate or an 
alleged illegitimate child to inherit from or through its natural father and 
any claim by a natural father to inherit from or through an illegitimate child 
shall be brought within three (3) years from and after July 1, 1981, and such 
time period shall run notwithstanding the minority of a child. 

The remedy created herein is separate, complete and distinct, but 
cumulative with the remedies afforded illegitimates as provided by the 
Mississippi Uniform Law on Paternity; provided, however, the failure of an 
illegitimate to seek or obtain relief under the Mississippi Uniform Law on 
Paternity shall not diminish or abate the remedy created herein. 

(4) The children of illegitimates and their descendants shall inherit from 
and through their mother and father according to the statutes of descent and 
distribution. 

SOURCES: Codes, Hutchinson's 1848, ch. 35, art. 2 (4); 1857, ch. 60, art. 115; 
1871, § 1955; 1880, § 1275; 1892, § 1549; Laws, 1906, § 1655; Hemingway's 
1917, § 1387; Laws, 1930, § 1408; Laws, 1942, § 474; Laws, 1924, ch. 162; 
Laws, 1981, ch. 529, § 1; Laws, 1983, ch. 339, eff from and after passage 
(approved March 14, 1983). 

Editor's Note — The Preamble to Chapter 339, Laws, 1983, provides as follows: 
"WHEREAS, The Mississippi Legislature passed an act amending Section 91-1-15, 
Mississippi Code of 1972, and other sections of said code pertaining to the rights and 

14 



Descent and Distribution § 91-1-15 

claims of illegitimates, during the 1981 Regular Session, said amendment being 
effective from and after July 1, 1981; and 

"WHEREAS, Section 91-1-15 was so amended to provide for intestate succession 
among an illegitimate and the natural father and his kindred with certain limitations, 
and to afford unto all illegitimates without classification a remedy whereby they could 
enforce their substantive rights and claims of intestate succession as provided for in 
said amendment; and 

"WHEREAS, the Legislature recognized that the decisions and statutes of this state 
existing prior to said amendment placed an insurmountable barrier to inheritance by 
illegitimates when compared to the rights of a legitimate person, and that said 
decisions and statutes effectively barred an unnecessarily large number of illegitimates 
from inheritance through their natural father as a result of certain classifications into 
which the illegitimate may be categorized in violation of equal protection under the law; 
and 

"WHEREAS, it now appears that there is confusion as to the legislative intent in 
amending Section 91-1-15, Mississippi Code of 1972, and said section is now interpreted 
by some segments of the judiciary to mean that the Legislature did not intend to create 
a new, separate and distinct remedy for the benefit of all illegitimates without any 
classification and said amendment as now codified in Section 91-1-15, Mississippi Code 
of 1972, is interpreted by some segments of the judiciary to be prospective only rather 
than retrospective and prospective in effect and is interpreted not to have created a 
new, separate and distinct remedy for the claims of all illegitimates without classifica- 
tion; and 

"WHEREAS, the Legislature recognized at the time it was considering said amend- 
ment, that by creating said remedy the Legislature was opening the door to the possible 
litigation of stale or fraudulent claims and that a further effect of bestowing said 
remedy upon all illegitimates would possibly be to create a certain amount of confusion 
and uncertainty as to the status of titles to real property; however, the Legislature 
intended to bestow upon illegitimates a new and additional remedy whereby such 
illegitimates could maintain their rights of inheritance notwithstanding such interests 
of the state in preventing stale and fraudulent claims and avoiding uncertainty as to 
the titles of real property and, accordingly, the Legislature enacted appropriate periods 
of limitations within which illegitimates could bring their claims;. 

"NOW, THEREFORE, in order to eliminate any ambiguity in Section 91-1-15, 
Mississippi Code of 1972, and to conform said section to express the true legislative 
intent,. 

"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:" 

Cross References — Computation of relationship according to civil law, see 
§§ 1-3-71, 1-3-73. 

Effect of establishment of right to inherit from deceased under this section on right 
to maintain action for injuries producing death, see § 11-7-13. 

Illegitimate children generally, see §§ 93-9-1 et seq. 

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 

1. In general. comply with Miss. Code Ann. § 91-1- 

2. Legitimation of children born out of 15(3)(c); the father had taken no action to 

wedlock. be declared the father of the child within 

3. Inheritance by illegitimates. one year of her death and there was no 

4. Inheritance through illegitimates. evidence that the administratrix took any 
1. In general. action as an administratrix de son tort 

Father's claim against his unborn prior to May 31, 2000. Tew v. Estate of 
child's estate was barred by his failure to Doe, 859 So. 2d 347 (Miss. 2003). 

15 



§ 91-1-15 



Trusts and Estates 



Mississippi law compels equal treat- 
ment of legitimates and illegitimates, and 
illegitimate child is therefore entitled to 
social security benefits. Jones v. Heckler, 
754 F.2d 519 (4th Cir. Md. 1985). 

Deceased musician's half-sister became 
executrix de son tort of decedent's unpro- 
bated estate by entering agreement, in 
which she purported to be sister and only 
surviving heir of decedent, for assignment 
of decedent's works, photographs, and ma- 
terials in exchange for share of royalties. 
Johnson v. Harris, 705 So. 2d 819 (Miss. 
1997), cert, denied, 522 U.S. 1109, 118 S. 
Ct. 1037, 140 L. Ed. 2d 104 (1998). 

Status as executrix de son tort, in favor 
of alleged illegitimate child of deceased 
musician, was assumed when irrevocable 
power of attorney was accepted from de- 
cedent's half-sister after half-sister had 
assigned all rights to musician's copy- 
rights, as well as by later accepting ap- 
pointment as personal representative of 
half-sister's estate. Johnson v. Harris, 705 
So. 2d 819 (Miss. 1997), cert, denied, 522 
U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 
104 (1998). 

Since personal representative of dece- 
dent was expressly authorized by statute 
to commence wrongful death action for 
benefit of all heirs entitled to recover, 
personal representative had sufficient 
standing to determine heirship of testa- 
tor's reputed illegitimate children for pur- 
poses of wrongful death statute. Jones v. 
Estate of Richardson, 695 So. 2d 587 
(Miss. 1997). 

The administrator of an estate is re- 
quired to provide actual notice to known 
or reasonably ascertainable legitimate 
children who are potential heirs and 
whose claims would be barred by the run- 
ning of the 90-day period from the notice 
of publication to creditors under the non- 
claim statute, § 91-l-15(3)(c). To hold oth- 
erwise would encourage administrators 
and executors to benefit as heirs at law by 
setting in motion the shortest filing period 
which, unbeknownst to the potential heir, 
has significantly shortened the time for 
the potential heir to meet with the statu- 
tory requirements to inherit as an heir. 
Smith ex rel. Young v. Estate of King, 579 
So. 2d 1250 (Miss. 1991). 

A claimant's timely filing, 3 days after 
the decedent's death, of a sworn Petition 



for Letters of Administration in which he 
alleged that he was the son and sole 
surviving heir of the deceased, sufficiently 
complied with the provisions of §§ 91-1- 
15, 91-1-27 and 91-1-29 and therefore his 
claim of heirship was not barred by the 
statute of limitations of § 91-l-15(3)(c). 
The fact that the claimant did not pre- 
cisely state that he was the "illegitimate" 
or "born-out-of-wedlock" son, as opposed 
to simply declaring himself to be "the son," 
was a matter of semantics which made no 
difference; the indication that he was the 
sole surviving heir was sufficiently clear. 
Wash v. Mcintosh, 566 So. 2d 1208 (Miss. 
1990). 

A party may combine a suit to deter- 
mine heirship with a suit to contest a will. 
Dees v. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 

Section 91-l-15(3)(c), which requires 
that an action seeking adjudication of 
paternity be filed within 90 days after the 
first publication of notice to creditors, does 
not require that notice be given within the 
90-day period. An out-of-wedlock child 
who brought a claim for heirship after her 
father's death complied with the filing 
requirement by petitioning to be ap- 
pointed administratrix and seeking to be 
declared the sole and only heir-at-law, 
where other persons, who would inherit 
from the decedent, had actual knowledge 
of the claim of heirship as evidenced by 
their hiring of an attorney, and, before the 
estate was closed, were properly allowed 
by the court to file their claim. The sum- 
mons by publication requirement of § 91- 
1-29 was met, and all parties were given 
their day in court. This procedure suffi- 
ciently complied with the notice require- 
ments of § 91-1-27 and § 91-1-29, and the 
filing requirements of § 91-l-15(3)(c). 
Perkins v. Thompson, 551 So. 2d 204 
(Miss. 1989). 

The six-year statute of limitations is 
inapplicable to suits brought by 
illegitimates under § 91-1-15 whose 
cause of action accrued prior to July 1, 
1981. Re Paschall v. Smiley, 530 So. 2d 18 
(Miss. 1988). 

A prior action on a petition to determine 
heirship, in which the petitioners sought 
to establish that they were the children of 
the deceased from a common law mar- 



16 



Descent and Distribution 



§ 91-1-15 



riage, did not bar, under the doctrine of 
res judicata, the children's action to share 
in the decedent's estate pursuant to § 91- 
1-15 since that statute as amended in 
1981 created a totally new cause of action 
in favor of illegitimate children. Stutts v. 
Stutts, 529 So. 2d 177 (Miss. 1988). 

When mother of decedent's alleged ille- 
gitimate child moved to intervene in case 
brought under Federal Employers Liabil- 
ity Act, it was incumbent on her to file 
petition in chancery court under § 91-1- 
27 and proceed under § 91-1-29, and in- 
tervention should have been denied be- 
cause these statutes had not been 
followed; where parties agreed for circuit 
judge to hear issue of paternity on merits, 
case would not be reversed because wrong 
court decided issue; on merits, circuit 
judge was correct in dismissing proposed 
intervention because there was no clear 
and convincing evidence that decedent 
was child's natural father. Ivy v. Illinois 
Cent. Gulf R. Co., 510 So. 2d 520 (Miss. 
1987). 

Under the terms of § 91-1-15, the De- 
partment of Welfare, which had the au- 
thority under §§ 43-19-31 and 43-19-35 to 
institute paternity proceedings to obtain 
repayment for support of a dependant 
child under the Aid to Dependent Chil- 
dren program (ADC) from the person le- 
gally obligated to pay that support, would 
be held to a standard of proof by prepon- 
derance of the evidence where the pro- 
ceeding was brought prior to the death of 
the putative father, rather than the stan- 
dard of clear and convincing evidence that 
applies to an adjudication after the death 
of the father to establish heirship. Ivy v. 
State Dep't of Pub. Welfare, 449 So. 2d 779 
(Miss. 1984). 

In a proceeding to determine heirship, 
the trial court erred in declaring § 91-1- 
15 unconstitutional of its own volition, 
where appellee, in his pleadings, did not 
claim that he was entitled to inherit from 
the decedent as his illegitimate son, and 
did not attack the constitutionality of the 
statute. Witt v. Mitchell, 437 So. 2d 63 
(Miss. 1983). 

The chancellor erred in passing upon 
the constitutionality of the statute where 
the issue of constitutionality had not been 
specially pleaded. Watson v. Miller, 409 
So. 2d 715 (Miss. 1982). 



A Section of the Illinois Probate Act 
barring illegitimate children to inherit by 
intestate succession from their fathers vi- 
olated the Equal Protection Clause, al- 
though not a "suspect classification", a 
statutory classification based on illegiti- 
macy must, at minimum, bear some ratio- 
nal relationship to a legitimate state pur- 
pose, in view of which the provision in 
question could not be justified on the 
ground that it promotes legitimate family 
relationships since a state may not at- 
tempt to influence the actions of men and 
women by imposing sanctions on children 
born of their relationships, nor do the 
difficulties of proving paternity in some 
situations justify the total statutory disin- 
heritance of illegitimate children whose 
fathers die intestate. The fact that an 
illegitimate child's father could have pro- 
vided for her by making a will did not save 
the provision from invalidity. Finally, the 
provision could not stand validated on the 
theory that it represents the legislature's 
attempt to mirror the intent of the state's 
decedents. Trimble v. Gordon, 4 Ohio Op. 
3d 296, 430 U.S. 762, 97 S. Ct. 1459, 52 L. 
Ed. 2d 31 (1977). 

A state's intestate succession statutes 
which provide that an illegitimate child, 
acknowledged but not legitimated by the 
father, cannot claim the right of a legiti- 
mate child and may take the father's 
property only to the exclusion of the state 
when the father has left no descendants, 
ascendants, collateral relatives, or surviv- 
ing wife, while legitimate children have a 
right of forced heirship in the father's 
estate, which statutes have the effect of 
barring an acknowledged illegitimate 
child from sharing in the father's estate 
with surviving collateral relatives, are not 
violative of constitutional due process and 
equal protection provisions, such statutes 
having a rational basis in the state's in- 
terest in promoting family life and in 
directing the disposition of property left 
within the state. Trimble v. Gordon, 4 
Ohio Op. 3d 296, 430 U.S. 762, 97 S. Ct. 
1459, 52 L. Ed. 2d 31 (1977). 

This section [Code 1942, § 474], being 
in derogation of the common law, must be 
strictly construed. Akers v. Estate of John- 
son, 236 So. 2d 437 (Miss. 1970). 

This section [Code 1942, § 474] and 
Code 1942, § 469, are in pari materia and 



17 



91-1-15 



Trusts and Estates 



should be construed together. Taylor v. 
Jackson, 194 Miss. 441, 12 So. 2d 144 
(1943). 

2. Legitimation of children born out 
of wedlock. 

There is no statutory requirement that 
putative father acknowledge child in or- 
der for child to establish its right to in- 
herit, although open acknowledgment has 
great bearing in determining factual issue 
of paternity. Ivy v. Illinois Cent. Gulf R. 
Co., 510 So. 2d 520 (Miss. 1987). 

Under former provisions of the statute, 
in an action by an illegitimate child de- 
manding that she be declared the heir of 
her natural father, capable of inheriting 
from him under the Mississippi laws of 
descent and distribution, the order en- 
tered in favor of the illegitimate daughter 
would be reversed and the suit dismissed 
where the time for bringing the action was 
six years from the date of the daughter's 
majority (§ 15-1-49) but the action was 
not commenced until 18 years after that 
date. Knight v. Moore, 396 So. 2d 31 (Miss. 
1981), cert, denied, 454 U.S. 817, 102 S. 
Ct. 95, 70 L. Ed. 2d 86 (1981). 

Any child legitimized by Code 1972, 
§ 91-1-15 is a child of the marriage within 
the meaning of Code 1972, § 93-11-65. 
Harper v. Harper, 300 So. 2d 132 (Miss. 
1974). 

In a proceeding on a petition by an 
alleged son seeking to be declared the sole 
heir of a decedent, where the decedent and 
the petitioner's mother were married and 
the alleged father acknowledged that the 
petitioner, born out of wedlock, was his 
son, and the alleged father was subse- 
quently adjudicated non compos mentis 
and had a guardian appointed for his 
estate not long after the marriage and 
acknowledgment, the petitioner became 
the alleged father's sole heir at time of his 
death. Nickles v. Nickles, 247 So. 2d 836 
(Miss. 1971). 

Where proof is clear, convincing, and 
unambiguous that the decedent acknowl- 
edged and believed over a long period of 
time that a child, conceived by a woman 
whom he subsequently married, was his 
daughter, she is entitled to be regarded as 
one of his heirs at law and to participate 
in his estate. Crosby v. Triplett, 195 So. 2d 
69 (Miss. 1967). 



Where evidence clearly shows a dece- 
dent's recognition and acknowledgment of 
plaintiff as his child over a long period of 
time, by statements, acts, and abiding 
belief that she was his daughter, it was 
incumbent upon the defendant to contra- 
dict or refute by credible, clear, and con- 
vincing evidence that no such acknowl- 
edgment ever took place, and in the 
absence of such a refutation the child is 
entitled to be acknowledged as one of 
decedent's heirs at law. Crosby v. Triplett, 
195 So. 2d 69 (Miss. 1967). 

Where a decree of chancery court an- 
nulled a marriage between an employee 
and mother of child who was born out of 
wedlock before such marriage, and the 
decree made the marriage void ab initio, 
on the ground that it had been entered 
into as result of coercion and duress and 
the parties had not lived together as man 
and wife, the child could not claim it was 
legitimate under the provisions of this 
section [Code 1942, § 474]. Stanford v. 
Stanford, 219 Miss. 236, 68 So. 2d 275 
(1953). 

Under a former version of this statute, 
for one born out of wedlock in another 
state to become a lawful heir as the child 
of a decedent in this state, it must be 
shown first that such person was the nat- 
ural child of decedent, that both parents 
were later lawfully married and that the 
father acknowledged such person as his 
child in this state. Thomas v. Thomas, 200 
Miss. 96, 25 So. 2d 710 (1946), and see 
Stutts v. Stutts, 529 So. 2d 177 (Miss. 
1988). 

Under former provisions of this statute, 
in a suit by appellee to establish sole 
heirship by reason of being the legitimate 
daughter of deceased, evidence was insuf- 
ficient to show that appellee, born in an- 
other state prior to marriage of her 
mother with decedent, was the natural 
child of deceased or that he ever acknowl- 
edged her as his own daughter. Thomas v. 
Thomas, 200 Miss. 96, 25 So. 2d 710 
(1946), and see Stutts v. Stutts, 529 So. 2d 
177 (Miss. 1988). 

Where decedent and his alleged surviv- 
ing widow, in good faith and with the bona 
fide intention of becoming man and wife, 
had entered into a ceremonial marriage in 
1896 under a regular license, thinking 



18 



Descent and Distribution 



§ 91-1-15 



that his first wife was dead, when, in fact, 
she did not die until 1923, such marriage 
became lawful and valid upon the death of 
the first wife, without any new or different 
understanding or intention between 
them, so that second wife was his lawful 
widow and their offspring became and 
were legitimate children, entitled to share 
in his estate with the offspring of the first 
marriage. Johnson v. Johnson, 196 Miss. 
768, 17 So. 2d 805 (1944). 

3. Inheritance by illegitimates. 

Illegitimate children's claim that the 
administratrix's failure to provide them 
with actual notice tolled the running of 
the one-year statute of limitations could 
not be supported and they were barred 
from recovery under the decedent's estate. 
In re Estate of Thomas, — So. 2d — , 2003 
Miss. App. LEXIS 996 (Miss. Ct. App. Oct. 
28, 2003). 

Claim for heirship was barred because 
the alleged illegitimate son filed the claim 
more than 18 years after the father's 
death. Delaying out of respect for the 
widow did not excuse failing to take 
timely action to establish paternity. Mann 
v. Buford, 853 So. 2d 1217 (Miss. 2003). 

The plaintiff's claim that she was the 
illegitimate child and sole heir of the de- 
cedent was barred by the statute where 
she failed to assert her claim until 14 
years after the death of the decedent, 
notwithstanding her assertion that she 
was too young at the time of his death and 
that she did not know any better than to 
wait to stake any claim she might have 
had until after the death of his alleged 
common law wife. Pringle v. Shannon, 794 
So. 2d 261 (Miss. Ct. App. 2001). 

Evidence was sufficient to support a 
chancellor's determination that the appel- 
lee was the illegitimate son of a jazz 
musician who died in 1938. Harris v. 
Johnson, 767 So. 2d 181 (Miss. 2000), cert, 
denied, 532 U.S. 959, 121 S. Ct. 1489, 149 
L. Ed. 2d 376 (2001). 

The appellants failed to meet their bur- 
den of proof by clear and convincing evi- 
dence that they were the illegitimate twin 
children of the decedent where the chan- 
cellor considered both genetic evidence of 
paternity as well as non-genetic or social 
evidence. In re Estate of Grubbs v. Woods, 
753 So. 2d 1043 (Miss. 2000). 



The administratrix of an estate had 
sufficient actual knowledge of the poten- 
tial right of heirship of a child to have 
required her, within a reasonable time 
after the child's birth, to comply with the 
formalities of §§ 91-1-27 and 91-1-29 by 
making the child a party to the adminis- 
tration proceeding; therefore, the admin- 
istratrix was precluded from raising the 
90 day time bar set out in subsection (3)(c) 
of this section. In re Brewer, 755 So. 2d 
1108 (Miss. Ct. App. 1999). 

Evidence that both executrixes de son 
tort held themselves out as representa- 
tives of deceased musician's estate and 
took actions to chill interest of copyright 
purchasers in locating musician's rightful 
heirs waived three-year statutory bar to 
claim by musician's alleged illegitimate 
son; executrixes de son tort breached duty 
to act for rightful heirs of musician, rather 
than for themselves. Code 1972, § 91-1- 
15(d)(ii). Johnson v. Harris, 705 So. 2d 819 
(Miss. 1997), cert, denied, 522 U.S. 1109, 
118 S. Ct. 1037, 140 L. Ed. 2d 104 (1998). 

To be declared heirs, illegitimate chil- 
dren of testator were required to establish 
paternity by clear and convincing evi- 
dence. Jones v. Estate of Richardson, 695 
So. 2d 587 (Miss. 1997). 

Chancery court was required to hold 
hearing regarding personal representa- 
tive's petition to determine heirship of 
testator's reputed illegitimate children. 
Jones v. Estate of Richardson, 695 So. 2d 
587 (Miss. 1997). 

Chancellor abused his discretion in fail- 
ing to set aside order determining heir- 
ship of testator's reputed illegitimate chil- 
dren, which was entered without formal 
hearing on matter. Jones v. Estate of Rich- 
ardson, 695 So. 2d 587 (Miss. 1997). 

The failure of the illegitimate children 
of a decedent to assert any claim in the 
decedent's estate until after the expiration 
of 90 days from the date of the first pub- 
lication of notice to creditors did not bar 
their claim of heirship or wrongful action 
where the petition for letters of adminis- 
tration specifically named the illegitimate 
children as the natural children of the 
decedent and the administratrix failed to 
give them notice of the letters' issuance. 
Leflore ex rel. Primer v. Coleman, 521 So. 
2d 863 (Miss. 1988). 



19 



§ 91-1-15 



Trusts and Estates 



A minor seeking to be declared an heir 
of the decedent as an illegitimate daugh- 
ter and to share in the estate should have 
been allowed to amend her complaint to 
allege that the widow and former execu- 
trix knew of the existence of the minor as 
an illegitimate child of the decedent, but 
fraudulently failed to so inform the court, 
notwithstanding that the minor's petition 
was filed more than 90 days after the 
publication of notice to the creditors of the 
estate. Smith ex rel. Young v. Estate of 
King, 501 So. 2d 1120 (Miss. 1987). 

Illegitimate child could inherit from 
their natural father, who died intestate in 
1969. Holloway v. Jones, 492 So. 2d 573 
(Miss. 1986). 

Illegitimate grandson is entitled to in- 
terest in estate of paternal grandmother 
where grandson's answer to petition filed 
by daughter of grandmother seeking to be 
adjudicated sole heir at law alleges that 
grandson is illegitimate son of grand- 
mother's deceased son and where parties 
have stipulated that illegitimate grand- 
son is indeed such and that grandson and 
daughter are only parties interested in 
estate. Miller v. Watson, 467 So. 2d 672 
(Miss. 1985). 

Action by illegitimate to be adjudicated 
son of deceased and to be allowed to share 
in estate which is brought within 3 years 
of July 1, 1981, date of enactment of 
amendment of § 91-1-15 is timely, not- 
withstanding fact that suit is brought 14 
years after death of deceased, so long as 
death occurred prior to July 1, 1981. Berry 
v. Berry, 463 So. 2d 1031 (Miss. 1984), 
cert, denied, 474 U.S. 828, 106 S. Ct. 90, 
88 L. Ed. 2d 73 (1985). 

The Supreme Court would not answer a 
certified question concerning the rights of 
illegitimate children of deceased fathers 
to certain social security benefits where it 
was asked to assume that § 91-1-15 was 
unconstitutional, and the constitutional- 
ity of that statute had not been squarely 
presented to, and litigated by, a court of 
competent jurisdiction. Jones ex rel. Jones 
v. Harris, 460 So. 2d 120 (Miss. 1984), 
opinion after certified question declined, 
754 F.2d 519 (4th Cir. Md. 1985). 

An illegitimate daughter's petition to 
determine heirship was not a paternity 
action, and therefore was not barred by 



§ 15-1-49 when she failed to file suit 
within six years of reaching majority, 
since under § 91-1-15, the determination 
of heirship could not be made prior to the 
decedent's death, and, until then, her 
cause of action did not accrue. Webber v. 
Kidd, 435 So. 2d 632 (Miss. 1983). 

The phrase, "children of illegitimates", 
as used in this section [Code 1942, § 474] 
applies only to legitimate children of 
illegitimates. Akers v. Estate of Johnson, 
236 So. 2d 437 (Miss. 1970). 

Illegitimate children inherit mother's 
share in the estate of her intestate 
brother, who left no wife or children sur- 
viving him. McDaniel v. McDaniel, 123 
Miss. 401, 85 So. 113 (1920). 

Illegitimate son of sister of whole-blood 
took intestate's personalty to exclusion of 
children of sister of half-blood. Davidson v. 
Brownlee, 114 Miss. 398, 75 So. 140 
(1917). 

Word "children" in constitution and by- 
laws of benefit association held not to 
exclude illegitimate child of female mem- 
ber. Shelton v. Minnis, 107 Miss. 133, 65 
So. 114 (1914). 

Under former provisions, this chapter 
made an innovation on the common law in 
favor of illegitimates in regard to inheri- 
tance, but it nowhere made rights in ac- 
tion for torts, transmissible by descent, 
and at common law they were not so 
transmissible. Illinois Cent. R.R. v. John- 
son, 77 Miss. 727, 28 So. 753 (1900). 

4. Inheritance through illegitimates. 

The father of an illegitimate child failed 
to establish his right to inherit from the 
child where he never met the child, failed 
to support the child, and failed to ac- 
knowledge the child as his own during the 
child's lifetime, notwithstanding that he 
did not receive the results of a blood test 
that established his paternity until just 
four days before the child's death. Stanton 
v. Patterson, 798 So. 2d 347 (Miss. 2001). 

In an action by the kindred of the nat- 
ural father of an illegitimate daughter to 
inherit from her estate, the claimants had 
the burden of proving by a preponderance 
of the evidence that the father openly 
recognized the illegitimate daughter as 
his child and that he did not refuse or 
neglect to support her when she was a 



20 



Descent and Distribution 



§ 91-1-15 



child. Woodall v. Johnson, 552 So. 2d 1065 
(Miss. 1989). 

Claim by natural father of illegitimate 
child, that he, the father, was entitled to 
the proceeds of a proposed settlement for 
the wrongful death of that child, was 
properly denied where the father had not 
supported the child and was therefore not 
the lawful heir. Alexander v. Alexander, 
465 So. 2d 340 (Miss. 1985). 

Daughter of an illegitimate may sue to 
determine her heirship descending from 
the father of her illegitimate mother. 
Larsen v. Kimble, 447 So. 2d 1278 (Miss. 
1984). 

An action brought by the daughter of 
decedent's illegitimate daughter to estab- 
lish her heirship was timely filed, where it 
was brought within the three year period 
prescribed by § 91-l-15(3)(d)(ii) para- 
graph 2, which regulates the limitation 
period for claims accruing to any legiti- 
mate child as the result of the death of an 
intestate prior to July 1, 1981, and where 
the decedent died prior to that date. 
Larsen v. Kimble, 447 So. 2d 1278 (Miss. 
1984). 



Where it appeared that the father of an 
intestate and the mothers of several 
groups of claimants to intestate's property 
were all illegitimate children of the same 
mother, but that the mother of one group 
had the same father as the intestate's 
father, the latter group was entitled to 
take the property to exclusion of the other 
groups of claimants, since, although chil- 
dren of an illegitimate, they were kindred 
of the whole-blood to the intestate, while 
the other groups, also being children of 
illegitimates, were kindred of the half- 
blood by reason of their mothers having a 
different father. Taylor v. Jackson, 194 
Miss. 441, 12 So. 2d 144 (1943). 

The legitimate children of an illegiti- 
mate father were entitled to inherit from 
the half-sister of their father, who died 
intestate, regardless of whether such half- 
sister was legitimate or illegitimate, 
where the intestate had no kindred of the 
whole-blood. Malone v. Pope, 189 Miss. 46, 
196 So. 319(1940). 



RESEARCH REFERENCES 



ALR. Inheritance from illegitimate. 48 
A.L.R.2d 759. 

Inheritance by illegitimate from moth- 
er's legitimate children. 60 A.L.R.2d 1182. 

Inheritance by illegitimate from or 
through mother's ancestors or collateral 
kindred. 97 A.L.R.2d 1101. 

Inheritance by illegitimate from moth- 
er's other illegitimate children. 7 A.L.R.3d 
677. 

Eligibility of illegitimate child to receive 
family allowance out of estate of his de- 
ceased father. 12 A.L.R.3d 1140. 

Discrimination on basis of illegitimacy 
as denial of constitutional rights. 38 
A.L.R.3d 613. 

Legitimation by marriage to natural 
father of child born during mother's mar- 
riage to another. 80 A.L.R.3d 219. 

Right of illegitimate grandchildren to 
take under testamentary gift to "grand- 
children". 17 A.L.R.4th 1292. 



Am Jur. 41 Am. Jur. 2d, Illegitimate 
Children §§ 114 et seq. 

CJS. 10 C.J.S., Bastards §§ 24-28, 30. 

Law Reviews. 1981 Mississippi Su- 
preme Court Review: Miscellaneous. 52 
Miss. L. J. 481, June, 1982. 

1982 Mississippi Supreme Court Re- 
view: Civil Procedure: Judicial Decisions. 
53 Miss L. J. 130, March, 1983. 

1982 Mississippi Supreme Court Re- 
view: Miscellaneous. 53 Miss. L. J. 179, 
March, 1983. 

Paternal inheritance rights of 
illegitimates under Mississippi law: 
greater than equal protection? 53 Miss. L. 
J. 303, June, 1983. 

1989 Mississippi Supreme Court Re- 
view: Wills (Rights of Illegitimates and 
Heirship). 59 Miss. L. J. 909, Winter, 
1989. 



21 



§ 91-1-17 



Trusts and Estates 



§ 91-1-17. Advancement to be brought into hotchpot. 

When any of the children of a person dying intestate, or their descendants, 
shall have received from such intestate, in his lifetime, any real or personal 
estate by way of advancement, and shall choose to come into the partition and 
distribution of the estate with the other parceners and distributees, such 
advancement, both of real and personal estate, shall be brought into hotchpot 
with the whole estate, real and personal, descended. Such party bringing such 
advancement into hotchpot shall thereupon be entitled to his or her proper 
portion of the whole estate descended, both real and personal; but such 
advancement shall be valued according to its value at the time said distributee 
received it. 

SOURCES: Codes, Hutchinson's 1848, ch. 44, art. 2 (51); 1857, ch. 60, art. 113; 
1871, § 1953; 1880, § 1276; 1892, § 1550; Laws, 1906, § 1656; Hemingway's 
1917, § 1388; Laws, 1930, § 1409; Laws, 1942, § 475. 

Cross References — Sale of personal estate for division, see §§ 91-7-301 et seq. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

Inasmuch as this section [Code 1942 
§ 475] is applicable only in the case of a 
person dying intestate, where decedent 
died testate, conveyances of property to 
two children did not constitute an ad- 
vancement. Mills v. Mills, 279 So. 2d 917 
(Miss. 1973). 

Book accounts kept by father against 
children during minority, without any- 
thing to show intention to charge them as 
advancements, will not be held advance- 
ments. Greene v. Greene, 145 Miss. 87, 
110 So. 218, 49 A.L.R. 565 (1926). 

To constitute "advancement," donor 
must irrevocably part with title, which 
must be vested in donee, in lifetime of 
donor; where no estate which can be alien- 
ated is given donee, no advancement is 
made. Greene v. Greene, 145 Miss. 87, 110 
So. 218, 49 A.L.R. 565 (1926). 

Land given by father to son as advance- 
ment should be valued for partition as of 
date of gift. Greene v. Greene, 145 Miss. 
87, 110 So. 218, 49 A.L.R. 565 (1926). 

Mere gift of money to a son is not 
presumed an advancement, but money 



advanced to son to purchase real estate is 
presumed an advancement. Kemp v. 
Turman, 104 Miss. 501, 61 So. 548 (1913). 

The widow is not within the statute. 
Whitley v. Stephenson, 38 Miss. 113 
(1859). 

The value of the property at the time of 
the advancement must govern in the dis- 
tribution, and interest is not to be charged 
thereon. Jackson v. Jackson, 28 Miss. 674, 
64 Am. Dec. 114(1855). 

The party bringing an advancement 
into hotchpot does not relinquish his in- 
terest in the particular property. The title 
to it was derived from the gift and cannot 
be affected by the distribution. Jackson v. 
Jackson, 28 Miss. 674, 64 Am. Dec. 114 
(1855). 

A child who does not claim anything by 
inheritance cannot be compelled to bring 
the property received from the father in 
his lifetime into hotchpot. Phillips v. 
McLaughlin, 26 Miss. 592 (1853). 

The advancements must have been re- 
ceived from the intestate himself. 
Callender v. McCreary, 5 Miss. (4 Howard) 
356 (1840). 



22 



Descent and Distribution § 91-1-19 

RESEARCH REFERENCES 

ALR. Presumption and burden of proof Advancements §§ 10:11 et seq. (particu- 
with respect to advancement. 31 A.L.R.2d lar agreements and provisions). 
1036. 35 Am. Jur. Proof of Facts 2d 357, De- 
Check as evidencing advancement. 74 cedent's Gift to Heir as Advancement. 
A.L.R.5th 491. CJS. 26B C.J.S., Descent and Distribu- 
Am Jur. 1 Am. Jur. Legal Forms 2d, tion §§ 95 et seq. 

§ 91-1-19. Descent of exempt property. 

The property, real and personal, exempted by law from sale under 
execution or attachment shall, on the death of the husband or wife owning it, 
descend to the survivor of them and the children and grandchildren of the 
decedent, as tenants in common, grandchildren inheriting their deceased 
parent's share; and if there be no children or grandchildren of the decedent, to 
the surviving wife or husband; and if there be no such survivor, to the children 
and grandchildren of the deceased owner. Where the surviving husband or wife 
shall own a place of residence equal in value to the homestead of the decedent, 
and the deceased husband or wife have no surviving children or grandchildren 
of the last marriage but have children or grandchildren of a former marriage, 
the homestead of such decedent shall not descend to the surviving husband or 
wife, but shall descend to the surviving children and grandchildren of the 
decedent by such former marriage, as other property. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 17 (2); 1857, ch. 60, art. 172; 
1871, § 1956; 1880, § 1277; 1892, § 1551; Laws, 1906, § 1657; Hemingway's 
1917, § 1389; Laws, 1930, § 1410; Laws, 1942, § 476; Laws, 1900, ch. 89. 

Cross References — Payment to estate as intestate property of actuarial equivalent 
of remaining payments on reduced retirement allowance annuity, see § 25-11-115. 
Exempt property generally, see §§ 85-3-1 et seq. and 89-1-29. 
Homestead allotment, see §§ 85-3-29 et seq. 

Appraiser's duty to set aside exempt property, see §§ 91-7-117, 91-7-135, 91-7-137. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 

1. Construction and application in gen- spouse or children or grandchildren does 

eral. the exempt property become liable for the 

2. Exempt property not part of estate to decedent's debts under Code 1972, § 91- 

be administered. 1-21. Weaver v. Blackburn, 294 So. 2d 786 

3. Date for determining value of prop- (Miss. 1974). 

er ty Undivided interest in homestead de- 

1. Construction and application in scended to decedent's wife and children. 

general. Jones v - Jones, 249 Miss. 322, 161 So. 2d 

This statute [Code 1972, § 91-1-19] spe- 640 (1964). 

cifically controls the descent of exempt A widow, children and grandchildren 

property, and those entitled thereto under are tenants in common subject to the right 

the statute inherit the exempt property in by the widow to undisturbed possession of 

fee simple free of decedent's debts; only the exempt homestead. Bonds v. Bonds, 

when the decedent leaves no surviving 226 Miss. 348, 84 So. 2d 397 (1956). 

23 



§ 91-1-19 



Trusts and Estates 



The fact that a widow was given a right 
under the statute to have the undisturbed 
possession of the exempt homestead fol- 
lowing the death of the husband does not 
have the effect of destroying the tenancy 
in common, which arose in the property 
upon the death of the husband, merely 
because of the fact that the right of pos- 
session of the other heirs is postponed 
pending the widowhood of the wife. Bonds 
v. Bonds, 226 Miss. 348, 84 So. 2d 397 
(1956). 

Son, one of ten adult heirs of deceased 
father, who paid to his mother $400 which 
was owing to father on purchase of home- 
stead, there being no administrator and 
no agent appointed by heirs authorized to 
receive payment, is not entitled to be 
credited with $250 paid to mother as al- 
lowance to widow, as widow had only a 
one-tenth interest in this $400, in suit in 
which heirs claimed balance due them on 
purchase price of land. Davis v. Davis, 205 
Miss. 794, 39 So. 2d 486 (1949), error 
overruled 205 Miss. 794, 40 So. 2d 156. 

This section [Code 1942, § 476] lays 
down general rule that upon death of a 
husband or wife, his or her exempt prop- 
erty shall descend to the survivor and to 
the children of the owner as tenants in 
common, but the section concludes with 
an exception thereto. Reed v. Reed, 197 
Miss. 261, 19 So. 2d 745 (1944). 

A bill to establish widow's right to pos- 
session and occupancy of the homestead of 
her deceased husband need not negative 
the exception contained in this section 
[Code 1942, § 476]. Reed v. Reed, 197 
Miss. 261, 19 So. 2d 745 (1944). 

The status of cotenancy is recognized in 
statutory provisions that a decedent's 
widow shall share in the homestead prop- 
erty as a tenant in common with the 
children, and that there shall be no parti- 
tion during her widowhood, or while she 
continues to occupy or use it, but the usual 
rights thereunder are made subordinate 
to the widow's right of use and occupancy 
during her life. Bohn v. Bohn, 193 Miss. 
122, 5 So. 2d 429 (1942), appeal dismissed, 
316 U.S. 646, 62 S. Ct. 1283, 86 L. Ed. 
1730 (1942). 

In line with the purpose of and under 
the statutory provisions that a decedent's 
widow shall share in the homestead prop- 



erty as a tenant in common with the 
children, and that there shall be no parti- 
tion during her widowhood, or while she 
continues to occupy or use it, the immu- 
nity from partition, being personal to the 
widow, is not extended to her grandniece. 
Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429 
(1942), appeal dismissed, 316 U.S. 646, 62 
S. Ct. 1283, 86 L. Ed. 1730 (1942). 

The right of the widow has the at- 
tributes and incidents of a life estate, and 
the other heirs are vested with a future 
estate which takes effect in possession at 
the termination of the preceding estate or 
interest. Bohn v. Bohn, 193 Miss. 122, 5 
So. 2d 429 (1942), appeal dismissed, 316 
U.S. 646, 62 S. Ct. 1283, 86 L. Ed. 1730 
(1942). 

Where deceased share tenant left noth- 
ing except exempt property, administra- 
tion was unnecessary; hence widow and 
children having unsuccessfully demanded 
tenant's share from landlord could recover 
in replevin. Williams v. Sykes, 170 Miss. 
88, 154 So. 267 (1934), error overruled, 
170 Miss. 93, 154 So. 727 (1934). 

Complainant in partition suit, claiming 
interest as tenant in common through 
ancestor, was not required to prove that 
ancestor died intestate. Smith v. Stanley, 
159 Miss. 720, 132 So. 452 (1931). 

Exempt property, real or personal, left 
by a deceased husband descends to his 
widow and children as tenants in com- 
mon, the grandchildren taking per stirpes 
the share of deceased children, but the 
widow has the right to occupy and use the 
same free from liability for rent or hire 
and from partition during her widowhood. 
Martin v. Martin, 84 Miss. 553, 36 So. 523 
(1904). 

If the widow renounces the will dispos- 
ing of exempt property, she is only entitled 
to share in the estate generally and is not 
entitled to the specific exempt property so 
disposed of. Nash v. Young, 31 Miss. 134 
(1856). 

In case the exempt property be disposed 
of by will, the statute does not apply. 
Turner v. Turner, 30 Miss. 428 (1855); 
Norris v. Callahan, 59 Miss. 140 (1881); 
Osburn v. Sims, 62 Miss. 429 (1884). 

2. Exempt property not part of estate 
to be administered. 

Under Code 1892, § 1551 [Code 1942, 
§ 476], $1,000 of life insurance, being 



24 



Descent and Distribution 



91-1-21 



exempt, inures to the heirs and forms no 
part of the estate to be administered. 
Equitable Life Assurance Soc. v. Hartfield, 
87 Miss. 548, 40 So. 21 (1906). 

This is so whether the estate be solvent 
or insolvent. Mason v. O'Brien, 42 Miss. 
420 (1868); De Baum v. Hulett Undertak- 
ing Co., 169 Miss. 488, 153 So. 513 (1934). 

The exempt personal property is no part 
of the estate to be administered, but de- 
scends directly under the statute. Whitley 
v. Stephenson, 38 Miss. 113 (1859); 
Holliday v. Holland, 41 Miss. 528 (1867); 
Wally v. Wally, 41 Miss. 657 (1868); De 
Baum v. Hulett Undertaking Co., 169 
Miss. 488, 153 So. 513 (1934). 



3. Date for determining value of prop- 
erty. 

If at the death of the owner of a home- 
stead it does not exceed the full limit of 
value allowed, a subsequent appreciation 
in value, no matter how great, does not 
give creditors of the decedent any right to 
subject to their claims the excess over the 
full amount allowed. Moody v. Moody, 86 
Miss. 323, 38 So. 322 (1905). 

The value of the property claimed as a 
homestead must be as of the time of dece- 
dent's death. Parisot v. Tucker, 65 Miss. 
439, 4 So. 113 (1888). 



RESEARCH REFERENCES 



ALR. Rights of surviving spouse and 
children in proceeds of sale of homestead 
in decedent's estate. 6 A.L.R.2d 515. 

Effect of divorce, separation, desertion, 
unfaithfulness, and the like, upon right to 
administer upon estate of spouse. 34 
A.L.R.2d 876. 



Separation agreement as barring rights 
of surviving spouse in other's estate. 34 
A.L.R.2d 1020. 

Am Jur. 40 Am. Jur. 2d, Homestead 
§§ 152etseq. 

CJS. 40 C.J.S., Homestead §§ 110 et 
seq. 



§ 91-1-21. Exempt property liable for debt of decedent. 

If there shall not be either a surviving wife or husband or children or 
grandchildren of the decedent, the exempt property shall be liable for the debts 
of the decedent and be disposed of in all respects as other property of such 
decedent. 

SOURCES: Codes, 1871, § 1956; 1880, § 1277; 1892, § 1552; Laws, 1906, § 1658; 
Hemingway's 1917, § 1390; Laws, 1930, § 1411; Laws, 1942, § 477; Laws, 
1900, ch. 89. 

Cross References — Exempt property generally, see §§ 85-3-1 et seq., 89-1-29. 

What are considered assets of estate, see § 91-7-91. 

Sale of property for payment of debts, see §§ 91-7-183 et seq. 

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

Where a decedent died leaving no sur- 
viving spouse, child or grandchild, the 
homestead exemption expired with her 
death and was not valid as against unpaid 
claims against her estate, even though the 
decedent left a will devising her previ- 
ously exempt homestead property to her 
ex-husband; the specific language of § 91- 



1-21 does not continue a decedent's home- 
stead exemption for anyone other than a 
surviving spouse, children or grandchil- 
dren, and consequently there was no 
exemptionist who could defeat the claim 
against the estate's homestead property. 
Memorial Hosp. v. Franzke, 634 So. 2d 117 
(Miss. 1994). 
The general rule imposing liability for 



25 



§ 91-1-23 



Trusts and Estates 



the debts of the decedent upon his exempt 
property in the absence of wife or chil- 
dren, is laid down in this section [Code 
1942, § 477], but there are exceptions of 
limitations placed thereon in cases where 
the proceeds of life insurance policy, in one 



case, are made payable to beneficiary, and 
in the other, made to inure to the heirs of 
legatees of the decedent. Coates v. Worthy, 
72 Miss. 575, 17 So. 606 (1895), on sug- 
gestion of error, 72 Miss. 579, 18 So. 916 
(1895). 



RESEARCH REFERENCES 



Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution §§ 134 et seq. 



CJS. 26B C.J.S., Descent and Distribu- 
tion §§ 112 et seq. 



§ 91-1-23. Exempt property not to be partitioned in certain 
cases. 

Where a decedent leaves a widow to whom, with others, his exempt 
property, real and personal, descends, the same shall not be subject to partition 
or sale for partition during her widowhood as long as it is occupied or used by 
the widow, unless she consent. Likewise, where a decedent leaves a widower to 
whom, with others, her exempt property, real and personal, descends, the same 
shall not be subject to partition or sale for partition during the period of his 
being a widower as long as it is occupied or used by the widower, unless he 
consent. 

SOURCES: Codes, 1892, § 1553; Laws, 1906, § 1659; Hemingway's 1917, § 1391; 
Laws, 1930, § 1412; Laws, 1942, § 478; Laws, 1950, ch. 346. 

Cross References — Partition of property generally, see §§ 11-21-1 et seq. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

2. To what property applicable. 

3. How title acquired immaterial. 

4. — Renunciation of will. 

5. Personal nature of right. 

6. Effect on others' interests. 

7. "Partition". 

8. Obligation to give accounting. 

9. Remarriage of widow/widower. 

10. Use without occupancy. 

11. Value of property. 

12. Tax delinquency. 

13. Insurance. 

14. Practice and procedure. 

1. In general. 

Judgment creditor of husband and wife 
who together owned property as tenants 
by the entirety could levy execution and 
sell that portion of homestead property 



which exceeded value of statutory home- 
stead exemption which had vested in wife 
following husband's death; this section 
was not applicable to debt for which sur- 
viving spouse was jointly and severally 
liable. In re Osborne, 120 B.R. 64 (Bankr. 
N.D. Miss. 1990). 

A surviving spouse's statutory right to 
occupy a homestead prevails where, by 
will, the owner devises it to another with- 
out share to the spouse; the surviving 
spouse need not renounce the will of the 
deceased owner in order to benefit from 
the statutory homestead right. Rush v. 
Rush, 360 So. 2d 1240 (Miss. 1978). 

This section would not apply to defeat 
the former wife's partition action of a 
home to which she had been given exclu- 
sive right of possession under the decree 
of divorce, where neither the former wife 



26 



Descent and Distribution 



§ 91-1-23 



nor former husband were deceased. 
Blackmon v. Blackmon, 350 So. 2d 44 
(Miss. 1977). 

Exempt homestead which descended to 
decedent's wife and children was not sub- 
ject to partition during the widowhood of 
the surviving wife, provided she remained 
a widow and qualified under the exemp- 
tion statute. Jones v. Jones, 249 Miss. 322, 
161 So. 2d 640 (1964). 

A husband in possession of realty which 
he and his wife held as cotenants, may, so 
long as he remains a widower, resist par- 
tition sought by one to whom the wife 
devised her interest. Biggs v. Roberts, 237 
Miss. 406, 115 So. 2d 151 (1959). 

Where a widow of a landowner, who had 
died intestate leaving also a son and 
daughter, neither waived nor attempted 
to dispose of her homestead rights by a 
deed conveying her one third interest to 
her son reserving to herself a life estate in 
all the lands, a grantee of one half interest 
of the tract of land from the son, to whom 
the daughter had also conveyed her one 
third interest therein, was not entitled to 
have the exempt property partitioned over 
the widow's objection. Gresham v. Clark, 
231 Miss. 206, 95 So. 2d 234 (1957). 

The property of an intestate was not 
subject to partition or sale for partition 
during the widowhood, as long as it was 
occupied by her, unless she consented. La 
Blanc v. Busby, 223 Miss. 415, 78 So. 2d 
456 (1955). 

Under provision widow has the right to 
retain the homestead as it was during her 
husband's lifetime, and this is true even 
though he also left children surviving. 
Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429 
(1942), appeal dismissed, 316 U.S. 646, 62 
S. Ct. 1283, 86 L. Ed. 1730 (1942). 

Children cannot have partition of ex- 
empt property occupied or used by widow. 
Stevens v. Wilbourn, 88 Miss. 514, 41 So. 
66 (1906). 

Exempt property, real or personal, left 
by a deceased husband descends to his 
widow and children as tenants in com- 
mon, the grandchildren taking per stirpes 
the share of the deceased children, but the 
widow has the right to occupy and use the 
same freed from liability for rent or hire 
and from partition during her widowhood. 
Martin v. Martin, 84 Miss. 553, 36 So. 523 
(1904). 



2. To what property applicable. 

Where property is subject to partition 
during the lives of cotenants-husbands, 
the right to partition is not enjoined by the 
deaths of the cotenants-husbands and the 
survival of their wives; however, the wid- 
ows should retain their houses as im- 
provements on the land, if possible, or, in 
the alternative, if it is not feasible to 
partition the land to allow the widows to 
receive their respective houses as im- 
provements, then an accounting should be 
had as to such improvements. Carter v. 
Brewton, 396 So. 2d 617 (Miss. 1981). 

Where the husband of the defendant in 
a partition action had never established 
the property in question as his homestead, 
his widow had no homestead interest in 
the land which would prevent its parti- 
tion. Mathis v. Quick, 271 So. 2d 924 
(Miss. 1973). 

This section [Code 1942, § 478] applies 
only to the property of the decedent owned 
at the time of his death, and does not 
prevent partition of the property of a de- 
ceased cotenant. Solomon v. Solomon, 187 
Miss. 22, 192 So. 10 (1939). 

3. How title acquired immaterial. 

A widow or widower is entitled to full 
use and occupancy of homestead property 
during widowhood whether he or she took 
that interest by deed, devise, or descent. 
Stockett v. Stockett, 337 So. 2d 1237 
(Miss. 1976). 

It is not necessary to the operation of 
this section [Code 1942, § 478] that title 
should have been acquired by inheritance. 
Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 
151 (1959). 

Widow, redeeming her interest from tax 
sale, had right against the other tenants 
to occupy property as homestead while 
widow, regardless of source from which 
cotenant's title was derived. Lackey v. 
Harrington, 162 Miss. 512, 139 So. 313 
(1932). 

4. — Renunciation of will. 

Although proper contracts not to re- 
nounce a will are enforceable even though 
Code 1972 § 91-5-25 provides that a hus- 
band or wife may renounce the will of 
another, the wife's agreement not to re- 
nounce her will constituted an unconscio- 
nable contract so as to permit the wife's 



27 



§ 91-1-23 



Trusts and Estates 



renunciation of her husband's will, not- 
withstanding her prior agreement not to 
renounce, where the wife was taken by 
her husband directly from her job to the 
office of the husband's attorney and per- 
suaded to assign the contract without 
prior knowledge of its existence or the 
opportunity to read the entire contract, 
and where the provision in the will, giving 
the wife a life estate in the parties' home- 
stead as long as she continued to live on 
the property, was minimal consideration 
when viewed against her rights under the 
laws of descent and distribution including 
her statutory right to a life estate in the 
homestead under Code 1972 § 91-1-23 
irrespective of her living on the property. 
Johnson v. Robinson, 351 So. 2d 1339 
(Miss. 1977). 

Upon a widow's renunciation of a testa- 
tor's will devising to her a life estate in his 
home with remainder to a daughter, the 
widow became entitled to a one-third in- 
terest to the property in fee, and the 
daughter to the other two-thirds interest 
therein, subject to the right of the widow 
to occupy and use it during her widow- 
hood. Milton v. Milton, 193 Miss. 563, 10 
So. 2d 175 (1942). 

Widow with one child, upon renouncing, 
took undivided interest in the homestead, 
which is not subject to partition during 
her widowhood as long as occupied by her, 
without her consent. Williams v. Williams, 
111 Miss. 129, 71 So. 300 (1916). 

5. Personal nature of right. 

In line with the purpose of these provi- 
sions, the immunity from partition, being 
personal to the widow, is not extended to 
her grandniece. Bohn v. Bohn, 193 Miss. 
122, 5 So. 2d 429 (1942), appeal dismissed, 
316 U.S. 646, 62 S. Ct. 1283, 86 L. Ed. 
1730 (1942). 

The right here conferred upon the 
widow is purely a personal one which does 
not pass to a grantee of her interest in the 
property. Middleton v. Claughton, 77 
Miss. 131, 24 So. 963 (1899). 

6. Effect on others' interests. 

The fact that a widow was given a right 
under the statute to have the undisturbed 
possession of the exempt homestead fol- 
lowing the death of the husband does not 
have the effect of destroying the tenancy 



in common, which arose in the property 
upon the death of the husband, merely 
because of the fact that the right of pos- 
session of the other heirs is postponed 
pending the widowhood of the wife. Bonds 
v. Bonds, 226 Miss. 348, 84 So. 2d 397 
(1956). 

A widow, children and grandchildren 
are tenants in common subject to the right 
by the widow to undisturbed possession of 
the exempt homestead. Bonds v. Bonds, 
226 Miss. 348, 84 So. 2d 397 (1956). 

The status of cotenancy is recognized by 
the statute, but the usual rights thereun- 
der are made subordinate to the widow's 
right of use and occupancy during her life. 
Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429 
(1942), appeal dismissed, 316 U.S. 646, 62 
S. Ct. 1283, 86 L. Ed. 1730 (1942). 

Under these provisions a widow's right 
has the attributes and incidents of a life 
estate, and the other heirs are vested with 
a future estate which takes effect in pos- 
session at the termination of the preced- 
ing estate or interest. Bohn v. Bohn, 193 
Miss. 122, 5 So. 2d 429 (1942), appeal 
dismissed, 316 U.S. 646, 62 S. Ct. 1283, 86 
L. Ed. 1730 (1942). 

A widow takes a child's part in the fee 
with the right of undisturbed possession 
or use of the homestead during her life- 
time, and her use thereof may not be 
divided with the children. Bohn v. Bohn, 
193 Miss. 122, 5 So. 2d 429 (1942), appeal 
dismissed, 316 U.S. 646, 62 S. Ct. 1283, 86 
L. Ed. 1730 (1942). 

7. "Partition". 

The partition prohibited by this section 
[Code 1942, § 478] means an actual divi- 
sion of title with the right of possession 
thereunder, not a mere record identifica- 
tion of the several interests therein with- 
out an assertion by the coparceners of 
their respective rights. Bohn v. Bohn, 193 
Miss. 122, 5 So. 2d 429 (1942), appeal 
dismissed, 316 U.S. 646, 62 S. Ct. 1283, 86 
L. Ed. 1730 (1942). 

8. Obligation to give accounting. 

The rights of the widow are absolute, 
and she cannot be called upon to account 
for the use and occupancy, nor forced to 
purchase the rights of her cotenants. 
Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429 



28 



Descent and Distribution 



§ 91-1-23 



(1942), appeal dismissed, 316 U.S. 646, 62 
S. Ct. 1283, 86 L. Ed. 1730 (1942). 

Children cannot have accounting, by 
widow, for her use of exempt property 
occupied or used by her. Stevens v. 
Wilbourn, 88 Miss. 514, 41 So. 66 (1906). 

9. Remarriage of widow/widower. 

Upon remarriage of a widow, her rights 
under § 91-1-23, which prevents partition 
of homestead property, are terminated 
and the entire property becomes subject to 
partition by any and all of the other joint 
owners. Cheeks v. Herrington, 523 So. 2d 
1033 (Miss. 1988). 

Upon remarriage of a widow, her rights 
under the statute are terminated and the 
entire property becomes subject to parti- 
tion by any and all of the other joint 
owners. Breland v. Bryant, 402 So. 2d 838 
(Miss. 1981). 

This provision ceases to operate when 
the widow remarries. Jefcoat v. Powell, 
235 Miss. 291, 108 So. 2d 868 (1959). 

10. Use without occupancy. 

Where a decedent resided on one tract 
of land and used this tract with another as 
a farm unit which consisted of less than 
160 acres, the widow was entitled to claim 
both parcels of land as a homestead al- 
though they were not contiguous. Horton 
v. Horton, 210 Miss. 116, 48 So. 2d 850 
(1950). 

Neither the cases dealing only with ur- 
ban property and those dealing with an 
urban tract and a rural tract as consti- 
tuting together one homestead are appli- 
cable to a case where rural lands are 
involved. Horton v. Horton, 210 Miss. 116, 
48 So. 2d 850 (1950). 

Widow, being entitled to use and occu- 
pancy of homestead, was entitled to rents 
thereof, and would so continue during her 
life or widowhood unless she elected or 
consented otherwise. Miers v. Miers, 160 
Miss. 746, 133 So. 133 (1931). 

Court could not order sale of homestead 
of widow more than 60 years of age who 
has moved from premises, but was being 
supported in part from products. Wright v. 
Coleman, 137 Miss. 699, 102 So. 774 
(1925). 

Exempt property of decedent descend- 
ing to the widow with others is used by 
her so long as its income is used for her 



support, whether or not she resides on it. 
Tiser v. McCain, 113 Miss. 776, 74 So. 660 
(1917). 

11. Value of property. 

The question of value has no place in 
the consideration of the rights of a surviv- 
ing widow to use and occupancy of the 
homestead, her rights being absolute so 
long as she remains a widow; the limita- 
tion on the value of the homestead that is 
exempt from creditors' demands, set by 
§ 85-3-21, is not applicable. Stockett v. 
Stockett, 337 So. 2d 1237 (Miss. 1976). 

The value of the homestead is not ma- 
terial in passing on the rights of the sur- 
viving widow, since it was never the inten- 
tion of the legislature that "160 acres of 
land should be reduced in quantity, save 
in one instance, and that is where the 
rights of the creditors were involved." Hor- 
ton v. Horton, 210 Miss. 116, 48 So. 2d 850 
(1950). 

Surviving widow entitled to occupy 
homestead of 160 acres irrespective of 
value, and heirs cannot have partition 
thereof. Dickerson v. Leslie, 94 Miss. 627, 
47 So. 659 (1908). 

Under this section [Code 1942, § 478] a 
surviving widow is entitled to occupy the 
homestead as it existed in the lifetime of 
the husband without reference to its 
value, the limit of value placed by law on 
exempt homesteads being solely for the 
benefit and protection of creditors and not 
affecting the rights of a surviving widow 
to the use and occupation of the home- 
stead against the other heirs of the de- 
ceased exemptionist. Moody v. Moody, 86 
Miss. 323, 38 So. 322 (1905). 

12. Tax delinquency. 

Where a widow of intestate occupied 
and used intestate's tax delinquent prop- 
erty, she could not permit the title to 
mature in the state and thereafter pur- 
chase the land for her own benefit at the 
expense of the children and any purchase 
she made of the tax title was made for the 
joint benefit of her and the intestate's 
children. La Blanc v. Busby, 223 Miss. 415, 
78 So. 2d 456 (1955). 

Widow, redeeming her interest from tax 
sale, had right against the other tenants 
to occupy property as homestead while 
widow, regardless of source from which 



29 



91-1-25 



Trusts and Estates 



cotenant's title was derived. Lackey v. 
Harrington, 162 Miss. 512, 139 So. 313 
(1932). 

13. Insurance. 

Proceeds of policy procured by widow on 
homestead property occupied by herself 
and children as cotenants, each having an 
undivided one-fifth interest therein, did 
not inure to the benefit of the children as 
cotenants merely because of alleged fidu- 
ciary relationship existing between them 
as such, notwithstanding insurance was 
not limited to widow's separate interest. 
Collette v. Long, 179 Miss. 650, 176 So. 
528 (1937). 

14. Practice and procedure. 

A bill to establish widow's right to pos- 
session and occupancy of the homestead of 
her deceased husband need not negative 



the exception contained in Code 1942, 
§ 476. Reed v. Reed, 197 Miss. 261, 19 So. 
2d 745 (1944). 

Where the defendant, a decedent's adult 
son, and his family were in possession of 
the lower floor and part of the second floor 
of a two-story homestead property, the 
widow was properly granted a peremptory 
writ upon the issue of liability for rent for 
the portion of the homestead occupied by 
the son, and she was entitled to have him 
ejected. Bohn v. Bohn, 193 Miss. 122, 5 So. 
2d 429 (1942), appeal dismissed, 316 U.S. 
646, 62 S. Ct. 1283, 86 L. Ed. 1730 (1942). 

Decree in partition ordering and con- 
firming sale of homestead, to which widow 
objected, should be vacated and bill dis- 
missed. Talley v. Talley, 108 Miss. 84, 66 
So. 328 (1914). 



§ 91-1-25, 
him. 



Person who has killed another not to inherit from 



If any person wilfully cause or procure the death of another in any way, he 
shall not inherit the property, real or personal, of such other; but the same 
shall descend as if the person so causing or procuring the death had prede- 
ceased the person whose death he perpetrated. 

SOURCES: Codes, 1892, § 1554; Laws, 1906, § 1660; Hemingway's 1917, § 1392; 
Laws, 1930, § 1413; Laws, 1942, § 479; Laws, 1992, ch. 311, § 1, eff from and 
after July 1, 1992. 

Cross References — Prohibition against murderer taking under will, see § 91-5-33. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

2. Construction. 

1. In general. 

Neither the Mississippi slayer's statute, 
Miss. Code Ann. § 91-1-25, or the Missis- 
sippi Uniform Simultaneous Death Act, 
Miss. Code Ann. §§ 91-3-1 through 91- 
13-15 acted to entitle the estate of a wife 
who was killed by her husband in a mur- 
der-suicide to a child's share of the hus- 
band's estate; husband's son by a previous 
marriage was the husband's sole heir-at- 
law. Estate of Miller v. Miller, 840 So. 2d 
703 (Miss. 2003). 



Evidence of a guilty plea to a charge of 
manslaughter is not sufficient, standing 
alone, to enable a fact finder to conclude 
that one is prohibited from inheriting un- 
der §§ 91-1-25 and 91-5-33. Hood v. 
VanDevender, 661 So. 2d 198 (Miss. 1995). 

An action alleging that funds distrib- 
uted to a decedent's son under a prior 
decree which adjudicated the intestate 
distribution of the decedent's estate, were 
"wrongfully inherited" pursuant to § 91- 
1-25 because the decedent's son willfully 
caused the decedent's death, was barred 
by § 91-1-31. Johnson v. Howell, 592 So. 
2d 998 (Miss. 1991). 



30 



Descent and Distribution 



§ 91-1-25 



Mississippi Code § 91-1-25 represents a 
legislatively-created exception. Roberts v. 
Grisham, 493 So. 2d 940 (Miss. 1986). 

Decedent's husband was entitled to in- 
herit an interest in land owned by his 
wife, even though he had entered into a 
consent decree in Michigan in which he 
relinquished his rights as heir of his wife, 
where the parties did not intend the Mich- 
igan decree to cover Mississippi lands; the 
testimony of husband that he shot his wife 
accidentally was properly admitted in ev- 
idence as an exception to the dead man's 
statute; insofar as the shooting was not 
wilful, the husband was not barred from 
inheriting by statute. Bianchi v. Scott, 363 
So. 2d 289 (Miss. 1978). 

Equitable estoppel does not and cannot 
authorize the exercise of a personal right 
which terminates with the death of a 
spouse, and the fact that a husband shot 
and killed his wife, an act which would 
have precluded his inheriting her estate, 
is no justification for permitting the de- 
ceased wife's personal representatives to 
renounce the husband's will, an act which 
by law can only be invoked personally by a 
surviving spouse. Jenkins v. Borodofsky, 
211 So. 2d 874 (Miss. 1968). 

The statute requiring commencement of 
action to recover land ten years after right 
to do so accrues, did not apply to a suit to 
cancel as cloud on title claim asserted by 
husband who pleaded guilty to man- 
slaughter in the death of his wife. Henry v. 
Toney, 217 Miss. 716, 64 So. 2d 904 (1953). 

In a suit to cancel as cloud on title claim 
asserted by husband by virtue of inheri- 
tance from his deceased spouse, where it 
was finally adjudicated that the husband 
had pleaded guilty to manslaughter in the 
death of his wife, the suit was not one for 
penalty or forfeiture on a penal statute 
required to be brought within one year 



from the date of offense. Henry v. Toney, 
217 Miss. 716, 64 So. 2d 904 (1953). 

Under this section [Code 1942, § 479] it 
is not requisite that the wilful killing shall 
amount to murder but it is enough that it 
was wilful and without justification in 
law. Henry v. Toney, 211 Miss. 93, 50 So. 
2d 921 (1951). 

In a suit to cancel husband's claim to 
property of wife on the ground that he had 
feloniously slain his wife in Ohio and 
thereby forfeited his right to the property 
under this section [Code 1942, § 479], the 
fact that the husband pleaded guilty to 
manslaughter in Ohio does not admit a 
wilful killing but the husband should be 
allowed to introduce evidence to explain 
the circumstances of killing. Henry v. 
Toney, 211 Miss. 93, 50 So. 2d 921 (1951). 

Insurance beneficiary's acts, after an 
assault by her husband, in running to a 
neighbor's home, procuring a gun and 
returning to shoot her husband through 
the window, constituted a deliberate ho- 
micide without justification in law and 
precluded her, as the widow beneficiary, 
from claiming the proceeds of a life insur- 
ance policy. Gholson v. Smith, 210 Miss. 
28, 48 So. 2d 603 (1950). 

2. Construction. 

Slayer's statutes such as Miss. Code 
Ann. § 91-1-25 are strictly construed and 
narrow in purpose. Estate of Miller v. 
Miller, 840 So. 2d 703 (Miss. 2003). 

The Mississippi slayer's statute, Miss. 
Code Ann. § 91-1-25, is a statute of exclu- 
sion, not inclusion and, when applicable, 
it acts to exclude a slayer from participa- 
tion in the victim's estate but it does not 
act to include the victim in the slayer's 
estate due to the slayer's crime. Estate of 
Miller v. Miller, 840 So. 2d 703 (Miss. 
2003). 



RESEARCH REFERENCES 



ALR. Felonious killing of ancestor as 
affecting intestate succession. 39 A.L.R.2d 
477. 

Killing of insured by beneficiary as af- 
fecting life insurance or its proceeds. 27 
A.L.R.3d 794. 

Felonious killing of one cotenant or ten- 
ant by the entireties by the other as af- 



fecting latter 's right in the property. 42 
A.L.R.3d 1116. 

Homicide as precluding taking under 
will or by intestacy. 25 A.L.R.4th 787. 

Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution §§ 50 et seq. 



31 



§ 91-1-27 



Trusts and Estates 



§ 91-1-27. 

made. 



How title to property acquired by descent may be 



In all cases in which persons have died, or may hereafter die, wholly or 
partially intestate, having property, real or personal, any heir at law of such 
deceased person, or any one interested in any of the property as to which he 
shall have died intestate, may petition the chancery court of the county in 
which said deceased had his mansion house or principal place or residence, or 
in which any part of his real estate may be situated, in case he was a 
nonresident, setting forth the fact that said person died wholly or partially 
intestate, possessed of real or personal property in the State of Mississippi, the 
names of the heirs at law or next of kin, and praying that the person named in 
said petition be recognized and decreed to be the heir at law of said deceased. 

SOURCES: Codes, 1906, § 2790; Hemingway's 1917, § 310; Laws, 1930, § 359; 
Laws, 1942, § 1270; Laws, 1896, ch. 93. 

Cross References — Applicability of this section to inheritances by and from 
illegitimates, see § 91-1-15. 

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

A claimant's timely filing, 3 days after 
the decedent's death, of a sworn Petition 
for Letters of Administration in which he 
alleged that he was the son and sole 
surviving heir of the deceased, sufficiently 
complied with the provisions of §§ 91-1- 
15, 91-1-27 and 91-1-29 and therefore his 
claim of heirship was not barred by the 
statute of limitations of § 91-l-15(3)(c). 
The fact that the claimant did not pre- 
cisely state that he was the "illegitimate" 
or "born-out-of-wedlock" son, as opposed 
to simply declaring himself to be "the son," 
was a matter of semantics which made no 
difference; the indication that he was the 
sole surviving heir was sufficiently clear. 
Wash v. Mcintosh, 566 So. 2d 1208 (Miss. 
1990). 

A party may combine a suit to deter- 
mine heirship with a suit to contest a will. 
Dees v. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 

Section 91-l-15(3)(c), which requires 
that an action seeking adjudication of 
paternity be filed within 90 days after the 
first publication of notice to creditors, does 
not require that notice be given within the 
90-day period. An out-of-wedlock child 
who brought a claim for heirship after her 



father's death complied with the filing 
requirement by petitioning to be ap- 
pointed administratrix and seeking to be 
declared the sole and only heir-at-law, 
where other persons, who would inherit 
from the decedent, had actual knowledge 
of the claim of heirship as evidenced by 
their hiring of an attorney, and, before the 
estate was closed, were properly allowed 
by the court to file their claim. The sum- 
mons by publication requirement of § 91- 
1-29 was met, and all parties were given 
their day in court. This procedure suffi- 
ciently complied with the notice require- 
ments of § 91-1-27 and § 91-1-29, and the 
filing requirements of § 91-l-15(3)(c). 
Perkins v. Thompson, 551 So. 2d 204 
(Miss. 1989). 

When mother of decedent's alleged ille- 
gitimate child moved to intervene in case 
brought under Federal Employers Liabil- 
ity Act, it was incumbent on her to file 
petition in chancery court under § 91-1- 
27 and proceed under § 91-1-29, and in- 
tervention should have been denied be- 
cause these statutes had not been 
followed; where parties agreed for circuit 
judge to hear issue of paternity on merits, 
case would not be reversed because wrong 
court decided issue; on merits, circuit 



32 



Descent and Distribution 



§ 91-1-29 



judge was correct in dismissing proposed 
intervention because there was no clear 
and convincing evidence that decedent 
was child's natural father. Ivy v. Illinois 
Cent. Gulf R. Co., 510 So. 2d 520 (Miss. 
1987). 

Provided paternity is established as re- 
quired by §§ 91-1-27 and 91-1-29, "chil- 
dren" under Federal Employers Liability 
Act means illegitimate as well as legiti- 
mate children. Ivy v. Illinois Cent. Gulf R. 
Co., 510 So. 2d 520 (Miss. 1987). 

Illegitimate child has right to inherit in 
father's wrongful death claim, but such 
claim must be asserted and established by 
clear and convincing evidence under 
§§ 91-1-27 and 91-1-29. Ivy v. Illinois 
Cent. Gulf R. Co., 510 So. 2d 520 (Miss. 
1987). 

Administrator who, in his petition for 
administration, represented that dece- 
dent's half-sister was the sole heir, even 
though he had actual knowledge that de- 
cedent had a living natural daughter, 
made a serious misrepresentation to the 
court, and, if the misrepresentation was 
determined to be a fraud on the court, the 
administrator would be removed. Camp- 
bell v. Gregory, 493 So. 2d 950 (Miss. 
1986). 

Although appointment of plaintiff as 
administrator of brother's estate may 
have violated Mississippi Code Annotated 
§ 91-1-27, wrongful death action would 
not be dismissed where such appointment 
could be attacked in Chancery Court of De 
Soto County, Mississippi, which court ap- 
pointed plaintiff as administrator. 
McGowan v. Riley, 628 F. Supp. 1087 (N.D. 
Miss. 1985). 



This section [Code 1942, § 12701 and 
Code 1942, § 1271 must be read as in pari 
materia. Shepherd v. Townsend, 249 Miss. 
383, 163 So. 2d 746 (1964). 

The statute providing for the determi- 
nation of the heirs of a decedent by a 
chancery court applies where the dece- 
dent has left a will bequeathing in part or 
entirely his estate to his nearest of kin 
according to the laws of descent and dis- 
tribution. Shepherd v. Townsend, 249 
Miss. 383, 163 So. 2d 746 (1964). 

Where there was no proceeding under 
this statute for the determination of heirs, 
one not a party to the administration of a 
decedent's estate may question its distri- 
bution even after expiration of the two 
years within which the statute permits 
the opening of an account. Shepherd v. 
Townsend, 249 Miss. 383, 163 So. 2d 746 
(1964). 

Adopted children of decedent are not 
necessary parties to suit to adjudicate 
heirship, unless decree of adoption made 
adopted children lawful heirs of adopting 
parent. Whitman v. Whitman, 206 Miss. 
838, 41 So. 2d 22 (1949). 

In a suit under this section [Code 1942, 
§ 1270] to have themselves declared 
heirs, brother and sister of deceased, al- 
legedly insane at time of marriage, could 
not after his death collaterally attack 
marriage which was merely voidable. 
White v. Williams, 159 Miss. 732, 132 So. 
573, 76A.L.R. 757(1931). 

Defendant held to have complete rem- 
edy at law relative to who was heir, in 
death action against it by administrator. 
Craft v. Homochitto Lumber Co., 141 
Miss. 156, 106 So. 440 (1925). 



RESEARCH REFERENCES 



Am Jur. 23 Am. Jur. 2d, Descent and 
Distribution §§ 25 et seq. 

CJS. 26B C.J.S., Descent and Distribu- 
tion §§ 9 et seq. 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 



Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-1-29. Heirs to be cited to appear. 

All the heirs at law and next of kin of said deceased who are not made 
parties plaintiff to the action shall be cited to appear and answer the same. And 



33 



§ 91-1-29 



Trusts and Estates 



in addition thereto a summons by publication shall be made addressed to "The 
heirs at law of , Deceased," and shall be published as other publica- 
tions to absent or unknown defendants, and the cause shall be proceeded with 
as other causes in chancery, and upon satisfactory evidence as to death of said 
person and as to the fact that the parties to said suit are his sole heirs at law, 
the court shall enter a judgment that the persons so described be recognized as 
the heirs at law of such a decedent, and as such be placed in possession of his 
estate. And said judgment shall be evidence in all the courts of law and equity 
in this state that the persons therein named are the sole heirs at law of the 
person therein described as their ancestor. 

SOURCES: Codes, 1906, § 2791; Hemingway's 1917, § 311; Laws, 1930, § 360; 
Laws, 1942, § 1271; Laws, 1991, ch. 573, § 127, eff from and after July 1, 
1991. 

Cross References — Publication of summons for unknown heirs, see § 13-3-25. 
Applicability of this section to inheritances by and from illegitimates, see § 91-1-15. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

When the individual asserting heirship 
claims to be an illegitimate child, the 
necessary parties include those blood re- 
lations of the decedent that would be the 
decedent's heirs at law should the illegiti- 
mate's claim of paternity fail; these per- 
sons are necessary parties even if they 
would be completely excluded from inher- 
itance if the paternity claim is proven. In 
re Brewer, 755 So. 2d 1108 (Miss. Ct. App. 
1999). 

A claimant's timely filing, 3 days after 
the decedent's death, of a sworn Petition 
for Letters of Administration in which he 
alleged that he was the son and sole 
surviving heir of the deceased, sufficiently 
complied with the provisions of §§ 91-1- 
15, 91-1-27 and 91-1-29 and therefore his 
claim of heirship was not barred by the 
statute of limitations of § 91-l-15(3)(c). 
The fact that the claimant did not pre- 
cisely state that he was the "illegitimate" 
or "born-out-of-wedlock" son, as opposed 
to simply declaring himself to be "the son," 
was a matter of semantics which made no 
difference; the indication that he was the 
sole surviving heir was sufficiently clear. 
Wash v. Mcintosh, 566 So. 2d 1208 (Miss. 
1990). 

A party may combine a suit to deter- 
mine heirship with a suit to contest a will. 



Dees v. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 

Section 91-l-15(3)(c), which requires 
that an action seeking adjudication of 
paternity be filed within 90 days after the 
first publication of notice to creditors, does 
not require that notice be given within the 
90-day period. An out-of-wedlock child 
who brought a claim for heirship after her 
father's death complied with the filing 
requirement by petitioning to be ap- 
pointed administratrix and seeking to be 
declared the sole and only heir-at-law, 
where other persons, who would inherit 
from the decedent, had actual knowledge 
of the claim of heirship as evidenced by 
their hiring of an attorney, and, before the 
estate was closed, were properly allowed 
by the court to file their claim, the sum- 
mons by publication requirement of § 91- 
1-29 was met, and all parties were given 
their day in court. This procedure suffi- 
ciently complied with the notice require- 
ments of § 91-1-27 and § 91-1-29, and the 
filing requirements of § 91-l-15(3)(c). 
Perkins v. Thompson, 551 So. 2d 204 
(Miss. 1989). 

Illegitimate child has right to inherit in 
father's wrongful death claim, but such 
claim must be asserted and established by 
clear and convincing evidence under 
§§ 91-1-27 and 91-1-29. Ivy v. Illinois 



34 



Descent and Distribution § 91-1-31 

Cent. Gulf R. Co., 510 So. 2d 520 (Miss, cause these statutes had not been 

1987). followed; where parties agreed for circuit 

Provided paternity is established as re- judge to hear issue of paternity on merits, 

quired by §§ 91-1-27 and 91-1-29, "chil- case would not be reversed because wrong 

dren" under Federal Employers Liability court decided issue; on merits, circuit 

Act means illegitimate as well as legiti- judge was correct in dismissing proposed 

mate children. Ivy v. Illinois Cent. Gulf R. intervention because there was no clear 

Co., 510 So. 2d 520 (Miss. 1987). and convincing evidence that decedent 

When mother of decedent's alleged ille- was child's natural father. Ivy v. Illinois 

gitimate child moved to intervene in case Cent. Gulf R. Co., 510 So. 2d 520 (Miss. 

brought under Federal Employers Liabil- 1987). 

ity Act, it was incumbent on her to file This section [Code 1942, § 1271] must 

petition in chancery court under § 91-1- be read as in pari materia with Code 1942, 

27 and proceed under § 91-1-29, and in- § 1270. Shepherd v. Townsend, 249 Miss, 

tervention should have been denied be- 383, 163 So. 2d 746 (1964). 

RESEARCH REFERENCES 

Am Jur. 23 Am. Jur. 2d, Descent and Procedure, Applicability of Rules, and Ju- 
Distribution §§ 41 et seq. risdiction and Venue — Rules 16, 81 and 

CJS. 26B C.J.S., Descent and Distribu- 82. 52 Miss. L. J. 105, March, 1982. 
tion §§ 23 et seq. 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 

§ 91-1-31. Judgment as to descent of property cannot be 
assailed collaterally except for fraud. 

A judgment so rendered as provided in Section 91-1-29 shall not be 
assailed collaterally, except for fraud, and shall be binding and conclusive upon 
all persons cited to appear from the date of its rendition, and upon all persons 
whomsoever from and after the expiration of two (2) years from the date on 
which the same was rendered, saving to minors and persons of unsound mind, 
the right to re-open said cause within one (1) year after attaining majority or 
being restored to sanity. A judgment so rendered shall thereupon be filed, 
recorded and indexed by the chancery clerk of the county where rendered in 
the general deed records of said county, just as if it were a deed of conveyance 
from said decedent to his heirs at law. And a certified copy of such judgment 
may likewise be filed, recorded and indexed in any other county where the 
decedent owned land at the date of his death. 

SOURCES: Codes, 1906, § 2792; Hemingway's 1917, § 312; Laws, 1930, § 361; 
Laws, 1942, § 1272; Laws, 1991, ch. 573, § 128, eff from and after July 1, 
1991. 

Cross References — Saving of rights of infant when his real estate is sold or 
conveyed, see § 11-5-115. 

Limitation of actions on domestic judgments generally, see §§ 15-1-43, 15-1-57. 
Ratification of debt contracted during infancy, see § 15-3-11. 
Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81. 



35 



§ 91-1-31 Trusts and Estates 

JUDICIAL DECISIONS 

1. In general. caused the decedent's death, was barred 

An action alleging that funds distrib- by § 91-1- 31. Johnson v. Howell, 592 So. 

uted to a decedent's son under a prior 2d 998 (Miss. 1991). 

decree which adjudicated the intestate Judgment or decree obtained by fraud is 

distribution of the decedent's estate, were void, and may be cancelled or enjoined in 

"wrongfully inherited" pursuant to § 91- a court of equity. Weems v. Vowell, 122 

1-25 because the decedent's son willfully Miss. 342, 84 So. 249 (1920). 

RESEARCH REFERENCES 

Am Jur. 23 Am. Jur. 2d, Descent and Procedure, Applicability of Rules, and Ju- 
Distribution § 65. risdiction and Venue — Rules 16, 81 and 

CJS. 26B C.J.S., Descent and Distribu- 82. 52 Miss. L. J. 105, March, 1982. 
tion§§ 131-134. 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 



36 



CHAPTER 3 
Uniform Simultaneous Death Law 

Sec. 

91-3-1. How chapter cited. 

91-3-3. Construction. 

91-3-5. Disposition of property in absence of evidence of survivorship. 

91-3-7. Beneficiaries of another person's disposition of property. 

91-3-9. Joint tenants or tenants by the entirety. 

91-3-11. Insurance policies or contracts. 

91-3-13. Chapter not to apply to persons dying before effective date. 

91-3-15. Provision in will, etc., rendering chapter inapplicable. 

§ 91-3-1. How chapter cited. 

This chapter may be cited as the Uniform Simultaneous Death Law. 

SOURCES: Codes, 1942, § 479-08; Laws, 1956, ch. 214, § 8, eff from and after 
July 1, 1956. 

Comparable Laws from other States — Alabama Code, §§ 43-7-1 through 43-7-8. 
Arkansas Code Annotated, §§ 28-10-101 through 28-10-111. 
Georgia Code Annotated, §§ 53-10-1 through 53-10-6. 
Tennessee Code Annotated, §§ 31-3-101 through 31-3-107. 
Texas Probate Code, § 47. 

RESEARCH REFERENCES 

ALR. Construction, application, and ef- Schoenblum, Estate Planning Forms 

feet of Uniform Simultaneous Death Act. and Clauses with CD Rom (Anderson Pub- 

39 A.L.R.3d 1332. lishing). 

Am Jur. Am. Jur. 2d Desk Book, Doc. Christensen, International Estate Plan- 
No. 129, jurisdictions adopting Uniform n ing, Second Edition (Matthew Bender). 
Simultaneous Death Law. Murphy's Will Clauses: Annotations 

Practice References. Robinson and and Forms with Tax E ff e cts (Matthew 

Mobley, Pritchard on the Law of Wills and Bender) 

Nossaman and Wyatt, Trust Adminis- 
tration and Taxation (Matthew Bender). 



Administration of Estates, Fifth Edition 
(Michie). 

Burke, Friel, and Gagliardi, Modern Es- 
tate Planning, Second Edition (Matthew t . Bl * e1 ' ^ lvln I 1V J ust ; s: Forms and PraC 



Bender). 

Freeman and Rapkin, Planning for Estate Planning Package (CD-ROM) 



tice (Matthew Bender). 
Estate Ph 
Large Estates (Matthew Bender). (LexisNexis). 

§ 91-3-3. Construction. 



This chapter shall be so construed and interpreted as to effectuate its 
general purpose to make uniform the law in those states which enact the 
Uniform Simultaneous Death Law. 

SOURCES: Codes, 1942, § 479-07; Laws, 1956, ch. 214, § 7, eff from and after 
July 1, 1956. 

37 



§ 91-3-5 Trusts and Estates 

§ 91-3-5. Disposition of property in absence of evidence of 
survivorship. 

Where the title to property or the devolution thereof depends upon priority 
of death and there is no sufficient evidence that the persons have died 
otherwise than simultaneously, the property of each person shall be disposed 
of as if he had survived, except as provided otherwise in this chapter. 

SOURCES: Codes, 1942, § 479-01; Laws, 1956, ch. 214, § 1, eff from and after 
July 1, 1956. 

Cross References — Presumption of death from long continued absence, see 
§ 13-1-23. 

JUDICIAL DECISIONS 

1. In general. Neither the Mississippi slayer's statute, 

No presumption as to survivorship as Miss. Code Ann. § 91-1-5, or the Missis- 

between persons killed in a common disas- sippi Uniform Simultaneous Death Act, 

ter arises under the Mississippi Uniform Miss. Code Ann. §§ 91-3-1 through 91- 

Simultaneous Death Act, Miss. Code Ann. 3-15 acted to entitle the estate of a wife 

§§ 91-3-1 through 91-3-15, nor is there a who was killed by her husband in a mur- 

presumption of simultaneous death; the der-suicide to a child's share of the hus- 

burden of proof is on the party whose band's estate; husband's son by a previous 

claim depends on survivorship to estab- marriage was the husband's sole heir-at 

lish the fact. Estate of Miller v. Miller, 840 -law. Estate of Miller v. Miller, 840 So. 2d 

So. 2d 703 (Miss. 2003). 703 (Miss. 2003). 

RESEARCH REFERENCES 

ALR. Construction, application, and ef- Practice References. Young, Trial 

feet of Uniform Simultaneous Death Act. Handbook for Mississippi Lawyers 

39A.L.R.3d 1332. § 19:18. 

Am Jur. 22A Am. Jur. 2d, Death CJS. 25A C.J.S., Death §§ 7, 15, 16. 
§§ 258, 259. 

§ 91-3-7. Beneficiaries of another person's disposition of 
property. 

Where two (2) or more beneficiaries are designated to take successively by 
reason of survivorship under another person's disposition of property and there 
is no sufficient evidence that these beneficiaries have died otherwise than 
simultaneously, the property thus disposed of shall be divided into as many 
equal portions as there are successive beneficiaries and these portions shall be 
distributed respectively to those who would have taken in the event that each 
designated beneficiary had survived. 

SOURCES: Codes, 1942, § 479-02; Laws, 1956, ch. 214, § 2, eff from and after 
July 1, 1956. 



38 



Uniform Simultaneous Death Law § 91-3-15 

§ 91-3-9. Joint tenants or tenants by the entirety. 

Where there is no sufficient evidence that two (2) joint tenants have died 
otherwise than simultaneously the property so held shall be distributed one 
half (V2) as if one had survived and one half (V2) as if the other had survived. 
If there are more than two (2) joint tenants and all of them have so died the 
property thus distributed shall be in the proportion that one bears to the whole 
number of joint tenants. 

SOURCES: Codes, 1942, § 479-03; Laws, 1956, ch. 214, § 3, eff from and after 
July 1, 1956. 

§ 91-3-11. Insurance policies or contracts. 

Where the insured and the beneficiary in a policy of life or accident 
insurance have died and there is insufficient evidence that they have died 
otherwise than simultaneously, the proceeds of the policy shall be distributed 
as if the insured had survived the beneficiary. 

SOURCES: Codes, 1942, § 479-04; Laws, 1956, ch. 214, § 4, eff from and after 
July 1, 1956. 

§ 91-3-13. Chapter not to apply to persons dying before effec- 
tive date. 

This chapter shall not apply to the distribution of the property of a person 
who has died before July 1, 1956. 

SOURCES: Codes, 1942, § 479-05; Laws, 1956, ch. 214, § 5, eff from and after 
July 1, 1956. 

§ 91-3-15. Provision in will, etc., rendering chapter inapplica- 
ble. 

This chapter shall not apply in the case of wills, living trusts, deeds, 
contracts of insurance or other contracts wherein provision has been made for 
distribution of property different from the provisions of this chapter. 

SOURCES: Codes, 1942, § 479-06; Laws, 1956, ch. 214, § 6, eff from and after 
July 1, 1956. 

RESEARCH REFERENCES 

ALR. Wills: construction of provision as multaneously, in a common disaster, or 
to which of two or more parties shall be within a specified period of time. 40 
deemed the survivor in case of death si- A.L.R.3d 359. 



39 



CHAPTER 5 
Wills and Testaments 

Sec. 

91-5-1. Who may execute; signature; attestation. 

91-5-3. Revocations. 

91-5-5. Children born after making of the will. 

91-5-7. Bequests not to lapse in certain cases. 

91-5-9. Devise to witness void. 

91-5-11. Devise or bequest to trustee. 

91-5-13. Creditor competent witness to will. 

91-5-15. Nuncupative wills. 

91-5-17. Parties in interest to nuncupative will to be cited. 

91-5-19. Nuncupative will not to be proven after six months unless reduced to 

writing. 

91-5-21. Members of armed forces and mariners at sea excepted. 

91-5-23. Provision for husband or wife to be in bar. 

91-5-25. Right of spouse to renounce will; form of renunciation; right to intestate 

share. 

91-5-27. Effect of no provision for husband or wife. 

91-5-29. Effect of wife or husband having separate estate. 

91-5-31. Repealed. 

91-5-33. Person who kills another not to take under his will. 

91-5-35. Will devising real property admitted to probate as muniment of title 

only; rights of interested parties unaffected. 

§ 91-5-1. Who may execute; signature; attestation. 

Every person eighteen (18) years of age or older, being of sound and 
disposing mind, shall have power, by last will and testament, or codicil in 
writing, to devise all the estate, right, title and interest in possession, 
reversion, or remainder, which he or she hath, or at the time of his or her death 
shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents 
charged upon or issuing out of them, or goods and chattels, and personal estate 
of any description whatever, provided such last will and testament, or codicil, 
be signed by the testator or testatrix, or by some other person in his or her 
presence and by his or her express direction. Moreover, if not wholly written 
and subscribed by himself or herself, it shall be attested by two (2) or more 
credible witnesses in the presence of the testator or testatrix. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (14); 1857, ch. 60, art. 34; 
1871, § 2388; 1880, § 1262; 1892, § 4488; Laws, 1906, § 5078; Hemingway's 
1917, § 3366; Laws, 1930, § 3550; Laws, 1942, § 657; Laws, 1970, ch. 324, § 1; 
Laws, 1973, ch. 314, § 1, eff from and after passage (approved March 14, 
1973). 

Cross References — Definition of term "will," see § 1-3-59. 

Recording of wills, see § 9-5-137. 

Anatomical gifts, see §§ 41-39-35 et seq. 

Descent and distribution generally, see §§ 91-1-1 et seq. 

Proof of wills by handwriting, see § 91-7-7. 

Release of powers of appointment, see §§ 91-15-1 et seq. 

40 



Wills and Testaments 



§ 91-5-1 



Criminal offense of alteration, destruction, or secretion of wills, see § 97-9-77. 
Criminal offense of forgery of record of will, see § 97-21-45. 
Criminal offense of forgery or counterfeiting of will, see § 97-21-63. 
Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject 
to the provisions of Title 91, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 



1. In general. 

2. What interests are devisable. 

3. Establishment of lost or destroyed 

will. 

4. Reformation or revocation. 

5. Construction of wills. 

6. — Lapsed or void devises; property 

not devised by will. 

7. Effect of mistake. 

8. Testamentary capacity. 

9. — Determination; generally. 

10. — Sufficiency. 

11. — Undue influence. 

12. Execution, in general. 

13. —Codicil. 

14. Signature or subscription. 

15. Attestation. 

16. — Validity; particular circumstances. 

17. — Presence of witnesses. 

18. Particular instruments as valid testa- 

mentary instruments. 

19. Holographic wills. 

20. — Date requirement. 

21. — Reference to extrinsic documents. 

22. — Construction. 

23. — Particular instruments as valid ho- 

lographic wills. 

24. Probate; requirement, generally. 

25. — Practice and procedure. 

26. — Evidence. 

27. Admissibility. 

28. — Burden of proof. 

1. In general. 

Competent person may dispose of prop- 
erty by will in any manner not prohibited 
by law. Parker v. Broadus, 128 Miss. 699, 
91 So. 394 (1922). 

Right to devolve property by will and 
rights thereunder are statutory. Woodville 
v. Pizzati, 119 Miss. 442, 81 So. 127 (1919). 

Statute upon wills and testaments au- 
thorizes every person sui juris to devise all 
his estate, real or personal, of any descrip- 
tion whatever, and such a will unless 
broken by heirs or renounced by the 
widow governs the entire disposition of 



his estate. McGaughey v. Eades, 78 Miss. 
853, 29 So. 516 (1901). 

2. What interests are devisable. 

A testator cannot, by will, dispose of 
property which he or she placed, during 
his or her lifetime, in a validly created 
joint tenancy account with rights of survi- 
vorship. A subsequent will does not de- 
stroy the joint tenancy and does not ter- 
minate that tenancy and divest the corpus 
of it into the estate of the testator. Strange 
v. Strange, 548 So. 2d 1323 (Miss. 1989). 

A person of sound and disposing mind 
whose property has been placed under 
conservatorship may execute a valid will 
and may do so without the knowledge of 
the conservator or the permission of the 
court. Lee v. Lee, 337 So. 2d 713 (Miss. 
1976). 

This statute authorizes devises of all 
interests in real estate, whether present 
or future. Hemphill v. Mississippi State 
Hwy. Comm'n, 245 Miss. 33, 145 So. 2d 
455 (1962). 

A testator has the right to devise or 
bequeath all of the property which he may 
have, not only at the time the will is 
executed, but any that he may thereafter 
acquire and own at the time of his death. 
Milton v. Milton, 193 Miss. 563, 10 So. 2d 
175 (1942). 

A will does not operate as substitution 
of legatees as beneficiaries in testator's 
life policy payable to his executors, admin- 
istrators or assigns. Magee v. Bank of 
Hattiesburg & Trust Co., 134 Miss. 126, 
98 So. 541 (1923). 

Under this section [Code 1942, § 657] 
one may devise land acquired after the 
will. McRae v. Lowery, 80 Miss. 47, 31 So. 
538 (1901). 

3. Establishment of lost or destroyed 

will. 

The evidence was sufficient to rebut the 
presumption that a testator revoked a will 
which was known to have been made and 



41 



§ 91-5-1 



Trusts and Estates 



was kept in a locked drawer of the testa- 
tor's desk, but which was not found upon 
his death, where the testator had a close 
and affectionate relationship with his 
daughter who was the sole beneficiary 
under the will, he talked to people about 
his will and told them that he was leaving 
his entire estate to his daughter, there 
was nothing in the record suggesting that 
he had changed his mind, the desk in 
which the will was kept was subject to 
entry by others, and there was evidence 
that someone had entered the house and 
the desk area after the testator died and 
emptied the contents of filing cabinet 
drawers. Matter of Berry v. Smith, 584 So. 
2d 400 (Miss. 1991). 

The trial court properly set aside a jury 
verdict finding that the decedent's lost or 
destroyed will had been properly executed 
where there was neither direct nor sec- 
ondary evidence that the alleged lost or 
destroyed will was ever signed, witnessed, 
and executed according to law. Gaston v. 
Gaston, 358 So. 2d 376 (Miss. 1978). 

Although there was no direct proof that 
the testatrix had destroyed the will, proof 
showing that the will was in her posses- 
sion when last seen and that it could not 
be found after her death, together with 
other evidence, sustained the chancellor's 
finding that complainant's proof was in- 
sufficient to establish the existence of the 
alleged lost or destroyed will at the time of 
testatrix's death, or to overcome the pre- 
sumption that the will had been destroyed 
by the testatrix during her lifetime with 
the intention of revoking it. James v. Bar- 
ber, 244 Miss. 234, 142 So. 2d 21 (1962). 

Failure to locate an instrument appar- 
ently alleged to have revoked a lost will of 
which an admittedly true copy was pro- 
duced, coupled with evidence that the 
devisee named had for years devoted him- 
self to fulfillment of an oral agreement 
with the testator, sustained establish- 
ment of the lost will. Denson v. Denson, 
203 Miss. 146, 33 So. 2d 311 (1948). 

To establish destroyed will, interested 
parties must establish date thereof, at- 
testing witnesses, and whether wholly or 
partly written and subscribed in testator's 
genuine handwriting. Didlake v. Ellis, 158 
Miss. 816, 131 So. 267 (1930). 

Personal property not disposed of by 
will is distributed under statute of descent 



and distribution. Eaton v. Broaderick, 101 
Miss. 26, 57 So. 298 (1912). 

4. Reformation or revocation. 

Any instrument expressly revoking a 
will must meet the requirements of Mis- 
sissippi Code § 91-5-1. Trotter v. Trotter, 
490 So. 2d 827 (Miss. 1986). 

The mental capacity required to revoke 
a will is the same as that required to make 
one. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

Courts cannot add to or take from a will 
or make a new will for the parties. Wil- 
liams v. Gooch, 208 Miss. 223, 44 So. 2d 57 
(1950). 

Courts will not by construction add to 
the terms of the will. Jones v. Carey, 122 
Miss. 244, 84 So. 186 (1920). 

Courts can no more supply defects in 
the execution of a will or codicil than they 
can add to or subtract from its words. 
Johnson v. Delome Land & Planting Co., 
77 Miss. 15, 26 So. 360 (1899). 

No court can decree the reformation and 
correction of a will. Schlottman v. 
Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. 
St. R. 527 (1895). 

5. Construction of wills. 

Where the residuary clause of a will 
devised the remainder of a trust to named 
persons, "my heirs at law, including", fol- 
lowing which all the testator's heirs were 
named with the exception of his two older 
children by his first wife, and the will was 
carefully drawn, with gifts made to the 
testator's heirs at law in other parts of the 
will without naming them individually, it 
was evident that the testator intended 
under the residuary clause to make a gift 
to certain named individuals, rather than 
to a class. Eubanks v. Lucius, 257 So. 2d 
215 (Miss. 1972). 

A will is to be construed so as to avoid 
intestacy if that can be reasonably done 
considering the language employed in the 
instrument and the circumstances con- 
fronting the testator at the time of execu- 
tion. Martin v. Eslick, 229 Miss. 234, 90 
So. 2d 635 (1956), corrected, 229 Miss. 
261, 92 So. 2d 244 (1957). 

Where, at the time a testator made his 
will, he owned property designated in the 
will as the "home place," which he after- 
wards disposed of, and acquired other 



42 



Wills and Testaments 



§ 91-5-1 



property which answered the same de- 
scription, and owned it at his death, the 
will must be applied thereto, unless some- 
thing therein indicates that the testator 
does not so intend. Milton v. Milton, 193 
Miss. 563, 10 So. 2d 175 (1942). 

The term "reversion" is not used in a 
restricted sense, but includes the right of 
reversion which would mature into an 
estate upon the happening of an uncertain 
future contingency the same as upon the 
happening of an event which at the time of 
the execution of a conveyance is certain to 
occur in the future. Ricks v. Merchants 
Nat'l Bank & Trust Co., 191 Miss. 323, 2 
So. 2d 344 (1941). 

A possibility of reverter owned by a 
testatrix at the time of her death passed to 
her residuary devisee, and did not de- 
scend according to the laws of descent and 
distribution. Ricks v. Merchants Nat'l 
Bank & Trust Co., 191 Miss. 323, 2 So. 2d 
344 (1941). 

A will does not operate as substitution 
of legatees as beneficiaries in testator's 
life policy payable to his executors, admin- 
istrators or assigns. Magee v. Bank of 
Hattiesburg & Trust Co., 134 Miss. 126, 
98 So. 541 (1923). 

This section [Code 1942, § 657] is not 
qualified by Code 1942, § 700, defining 
the word "written." Sheehan v. Kearney, 
82 Miss. 688, 21 So. 41 (1896). 

6. — Lapsed or void devises; property 
not devised by will. 

Under this section [Code 1942, § 657] 
and Code 1942, § 831, a residuary devise 
or bequest carries everything the testator 
has attempted but failed to dispose of, 
unless a contrary intention appears from 
the will. Oliphant v. Skelton, 230 Miss. 
518, 93 So. 2d 181 (1957). 

Where a testatrix devised to her two 
daughters a life interest in certain real 
estate with the remainder over to their 
descendants, bequeathed one dollar each 
to her other children, and devised to the 
same two daughters the rest of her estate, 
both real and personal, the two daughters, 
having no children, took a fee to the realty. 
Oliphant v. Skelton, 230 Miss. 518, 93 So. 
2d 181 (1957). 

Remainder goes to heirs, where devise 
thereof is void. Wheat v. Lacals, 139 Miss. 
300, 104 So. 73 (1925). 



Devise lapsed because of death of devi- 
see descends as undisposed of property. 
Marx v. Hale, 131 Miss. 290, 95 So. 441 
(1923). 

7. Effect of mistake. 

A mistaken belief of an extrinsic fact, 
even though it causes a testator to make a 
will differently than he otherwise would 
had he known the truth, is insufficient to 
avoid a will. Sullivant v. Vick, 557 So. 2d 
760 (Miss. 1989). 

8. Testamentary capacity. 

The mental capacity required to revoke 
a will is the same as that required to make 
one. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

Capacity relates to time of execution; 
temporary insanity not presumed to con- 
tinue until execution of will. Scally v. 
Wardlaw, 123 Miss. 857, 86 So. 625 (1920). 

Sound and disposing mind of testator is 
essential. Gathings v. Howard, 122 Miss. 
355, 84 So. 240 (1920). 

One of testamentary capacity may exe- 
cute will from any motive. Moore v. Parks, 
122 Miss. 301, 84 So. 230 (1920). 

Where on an issue devisavit vel non the 
question is whether the testator was sane 
or insane the contestants are not required 
to prove his sanity beyond all reasonable 
doubt. King v. Rowan, 82 Miss. 1, 34 So. 
325 (1903). 

9. — Determination; generally. 

The granting of an instruction in a will 
contest which advised the jury that it 
could not return a verdict for the propo- 
nent if it found that the testatrix was in 
any way influenced, or guided, or directed, 
about, or in, or concerning the signing, 
publication, or the securing of attestation 
of the will by any person whomsoever, was 
reversible error, since it is undue influ- 
ence that vitiates a will; a testator has the 
right to be directed and assisted in the 
preparation of his will, and may have any 
aid or direction which he desires. Briscoe's 
v. Briscoe, 255 So. 2d 313 (Miss. 1971). 

In determining whether the chancellor 
should have granted a peremptory in- 
struction on the question of testamentary 
capacity the court must assume as true all 
the facts which contestant's evidence 
fairly tends to establish, together with all 



43 



§ 91-5-1 



Trusts and Estates 



reasonable inferences to be deduced there- 
from. Lowrey v. Wilkinson, 222 Miss. 201, 
75 So. 2d 643 (1954). 

In a proceeding devisavit vel non involv- 
ing a will which was challenged on the 
ground of lack of testamentary capacity 
and of undue influence, the submission to 
jury of both issues was in error where the 
evidence as to undue influence was insuf- 
ficient. In re Alexander's Will, 221 Miss. 
478, 73 So. 2d 172 (1954). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, it should be assumed 
that general verdict of jury against valid- 
ity of will was on ground of want of testa- 
mentary capacity which was amply sup- 
ported by evidence, where proof was 
insufficient to sustain verdict on ground of 
undue influence. Blalock v. Magee, 205 
Miss. 209, 38 So. 2d 708 (1949). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, judgment on general ver- 
dict against validity of will returned un- 
der instruction as to burden of proponents 
to establish both testamentary capacity 
and lack of undue influence by preponder- 
ance of evidence will not be reversed be- 
cause of refusal to grant peremptory in- 
struction on question of undue influence 
where there is sufficient evidence on ques- 
tion of want of testamentary capacity to 
warrant jury's finding. Blalock v. Magee, 
205 Miss. 209, 38 So. 2d 708 (1949). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, general verdict of jury on 
issue of whether or not proponents have 
shown by preponderance of evidence both 
testamentary capacity and lack of undue 
influence at time of execution of will 
should be sustained if proponents fail to 
prove either or both of these necessary 
requirements. Blalock v. Magee, 205 Miss. 
209, 38 So. 2d 708 (1949). 

It is the general rule that the nature 
and extent of testator's estate may be 
shown on issue of testamentary capacity 
and undue influence. Norman v. Norman, 
196 Miss. 597, 18 So. 2d 130 (1944). 

Unnatural or unreasonable provisions 
not sufficient to show incapacity, but may 
be considered with other evidence. Scally 
v. Wardlaw, 123 Miss. 857, 86 So. 625 
(1920). 



Occasional fits of anger not connected 
with the will do not show incapacity. 
Moore v. Parks, 122 Miss. 301, 84 So. 230 
(1920). 

10. — Sufficiency. 

Trial court erred by giving the issue of 
the decedent's testamentary capacity to 
the jury where there was no indication 
that the decedent lacked testamentary 
capacity; on the contrary, she left her 
estate to the natural objects of her bounty, 
the decedent was capable of determining 
the property disposition that she wished, 
and she was cognizant of the nature of her 
actions. McClendon v. McClendon (In re 
Estate of Pigg), — So. 2d — , 2003 Miss. 
App. LEXIS 851 (Miss. Ct. App. Sept. 16, 
2003). 

A court did not err in finding that a 
testator had the necessary mental capac- 
ity to make a valid will where the propo- 
nent of the will made a prima facie case of 
testamentary capacity by placing into ev- 
idence the will of the decedent, the affida- 
vits of subscribing witnesses, and the 
judgment admitting the will to probate, 
and the only evidence offered by the con- 
testant was the testimony of an adverse 
witness whose testimony did not indicate 
that the testator lacked testamentary ca- 
pacity. Matter of Will of Wasson (Miss. 
1990) 562 So. 2d 74 

The evidence in a will contest action 
brought by the testator's son was insuffi- 
cient to establish testamentary incapacity 
where 2 witnesses stated that the testator 
had made statements of hostility toward 
his son and cursed him, neither witness 
could identify the reason for this attitude 
and expressed the belief that the son tried 
untiringly to please his father and obey 
him, and one witness testified to the tes- 
tator's drinking alcoholic beverages, 
"some" every day. Blanks v. Dickey, 542 
So. 2d 903 (Miss. 1989). 

Chancellor's finding that the testatrix 
lacked mental capacity to make a will was 
supported by a number of witnesses who 
had testified as to the testatrix's mental 
and physical condition on the day before 
the day after the alleged execution of the 
will, and it further appeared that for the 
three days involved the testatrix's condi- 
tion was continuous. Kelker v. Jordan, 228 
Miss. 847, 89 So. 2d 858 (1956). 



44 



Wills and Testaments 



§ 91-5-1 



On issue of testamentary capacity, it is 
for serious consideration of jury as to 
whether or not it is either natural or 
rational that testatrix should devise to 
sister and nephew half interest in home 
occupied by husband, when testatrix has 
ample personal assets to provide for them 
to extent greater than value of undivided 
interest devised in residence. Blalock v. 
Magee, 205 Miss. 209, 38 So. 2d 708 
(1949). 

It is neither unnatural nor evidence of 
abnormality that testatrix in her will 
should favor widowed sister, who was not 
in as good financial circumstances as 
other members of family and also her 
nephew who had lived in her home for 
many years. Blalock v. Magee, 205 Miss. 
209, 38 So. 2d 708 (1949). 

It cannot be said that an eccentric old 
man was not in one of his admitted peri- 
ods of calm and discretion at the time he 
executed a will when at that time he made 
intelligent and solicitous inquiry as to the 
contents and import of the will. Ward v. 
Ward, 203 Miss. 32, 33 So. 2d 294 (1948). 

Testator's disposition of his property to 
certain nephews and nieces to the exclu- 
sion of other nephews and nieces and an 
incompetent brother, was natural and just 
and did not, of itself, show lack of testa- 
mentary capacity or undue influence, 
where beneficiaries resided near testator, 
worked with and assisted him in the op- 
eration of his farm, and cared for testator 
during illness. Norman v. Norman, 196 
Miss. 597, 18 So. 2d 130 (1944). 

Chancellor's finding of testamentary ca- 
pacity reversed where will showed such 
capacity lacking and will made in contem- 
plation of suicide. Johnson v. Stansell, 94 
Miss. 923, 48 So. 619 (1909). 

11. — Undue influence. 

Where appellants' sole evidence that a 
will was procured by appellee's undue 
influence over his father was testimony 
from appellee's ex-wife, who had no first- 
hand knowledge and testified only as to 
conversations she allegedly had with ap- 
pellee, and her testimony was fully re- 
futed by appellee, appellants failed to 
meet their burden to show undue influ- 
ence. Hensley v. Harris, 870 So. 2d 1227 
(Miss. Ct. App. 2003), cert, denied, 870 So. 
2d 666 (Miss. 2004). 



A daughter failed to overcome the pre- 
sumption of undue influence arising from 
her father's execution of a will devising all 
of his property to her where the father had 
previously executed a will devising the 
property to all of his children, the father 
developed a dislike of all of his children 
except the daughter within two years af- 
ter the daughter moved in with the father 
to care for him after he suffered a stroke, 
the daughter did nothing to discourage 
the unwarranted ill will which her father 
developed towards her brothers and sis- 
ters, she took control of the father's finan- 
cial affairs and initiated the preparation 
of the second will by contacting a lawyer of 
her selection, she stayed in the waiting 
room of the lawyer's office while the will 
was being executed, she paid the lawyer 
at the father's request by writing a check 
from the father's account, and the execu- 
tion of the will was kept secret by the 
father and the daughter, though all mat- 
ters concerning the father had previously 
been discussed by all the children and all 
of them had participated in making deci- 
sions which concerned his well being and 
financial affairs. Green v. Woodall, 593 So. 
2d 471 (Miss. 1992). 

The test for rebutting a presumption of 
undue influence has been modified and no 
longer requires the independent advice of 
a competent person, but instead requires 
a showing of the grantor's "independent 
consent and action." Marsalis v. Lehmann, 
566 So. 2d 217 (Miss. 1990). 

One of the many ways of effecting un- 
due influence upon a testator is by misrep- 
resentation of fact; the misrepresentation 
may be made with the deliberate intent to 
deceive, knowing full well that it is false, 
as well as recklessly made without regard 
to its truth or falsity. In order to set aside 
a will resulting solely from the misrepre- 
sentation of a beneficiary, it must first be 
established that the representation was 
not true and actually influenced the tes- 
tator to make a will he or she would not 
otherwise have made, that but for the 
misrepresentation by the beneficiary, the 
will would have been entirely different. 
Sullivant v. Vick, 557 So. 2d 760 (Miss. 
1989). 

There was sufficient evidence of undue 
influence exercised upon a testatrix, in the 



45 



91-5-1 



Trusts and Estates 



absence of which she would not have exe- 
cuted the will she made which left an 
undivided V2 interest in property owned 
by the testatrix and her husband to their 
daughters, where one of the testatrix's 
daughters made persistent efforts to get 
the testatrix to secure for her some inter- 
est in the property, the daughter con- 
stantly badgered the testatrix when she 
was well advanced in years and in failing 
health, the daughter played a material 
part in convincing the testatrix that her 
husband had devised all his real property 
to their sons, and the testatrix's only rea- 
son for executing the will was her convic- 
tion that her husband was devising all his 
property to the sons and it was her desire 
to treat all the children equally. Sullivant 
v. Vick, 557 So. 2d 760 (Miss. 1989). 

An attorney did not overcome the pre- 
sumption of undue influence over an eld- 
erly couple with whom he had entered into 
an oral arrangement under which couple 
made the attorney a signatory of their 
bank account with the authority to write 
checks for their needs in the event they 
became incapacitated and with the attor- 
ney being entitled to the balance of the 
account upon the couples' death where the 
attorney failed to advise the couple to 
secure independent advice and counsel, 
even though the arrangement was accom- 
plished without any intent on the part of 
the attorney to commit any wrongful act. 
Lowrey v. Will of Smith, 543 So. 2d 1155 
(Miss. 1989). 

Although testatrix' will was prepared by 
an independent attorney personally em- 
ployed by her for that purpose, evidence 
established that the will under which her 
regular attorney was the principal benefi- 
ciary had been procured by the exercise of 
undue influence upon testatrix by him. 
Holland v. Traylor, 227 So. 2d 829 (Miss. 
1969), overruled on other grounds, Davion 
v. Williams, 352 So. 2d 804 (Miss. 1977). 

In the absence of proof of an actual 
attempt to deceive the testator, his mis- 
taken belief that the principal devisee was 
his son would have been insufficient to 
show undue influence. Provenza v. 
Provenza, 201 Miss. 836, 29 So. 2d 669 
(1947). 

Jury may consider disposition of prop- 
erty, confidential relations, and mental 



and physical conditions of testator in de- 
termining undue influence; jury are sole 
judges as to undue influence. Isom v. 
Canedy, 128 Miss. 64, 88 So. 485 (1921). 

Undue influence may be made out by 
circumstantial evidence. Jamison v. 
Jamison, 96 Miss. 288, 51 So. 130 (1910). 

12. Execution, in general. 

The chancery court correctly denied 
probate to a document offered as the will 
of a decedent, where the document was 
neither wholly written and subscribed by 
the testator nor attested by two or more 
credible witnesses in the presence of the 
testator as required by § 91-5-1, but was 
entirely typewritten, signed by the dece- 
dent, and had a certificate of a notary 
public that it had been "sworn to and 
subscribed before me" followed by the sig- 
nature and seal of the notary. The history 
of will contests in Mississippi supports the 
view that the requirements that there be 
two attesting witnesses to a will and, 
moreover, that it be attested by them in 
the presence of the testator, and that such 
attestation be evidenced by the affixation 
of their signatures to document, are indis- 
pensable safeguards of the integrity of 
testimentary documents. Batchelor v. Es- 
tate of Powers, 348 So. 2d 776 (Miss. 
1977). 

Where a testator in his will clearly 
expressed a desire that his estate be held 
together, and it was evident that his in- 
tent could be followed only by execution of 
the trust recommended by the testator in 
his will, the form of the trust attached to 
the will was mandatory, and it was proper 
that the trust was admitted to probate 
and established, notwithstanding that the 
testator's words in the will attaching a 
draft of his plans for the trust, and recom- 
mending it as a guide, were merely prec- 
atory. Farmer v. Broadhead, 230 So. 2d 
779 (Miss. 1970). 

As a general rule of law, courts tend to 
sustain a testamentary document as hav- 
ing been legally executed if it is possible to 
do so consistent with statutory require- 
ments. Lyle v. Shannon, 228 So. 2d 594 
(Miss. 1969). 

Ordinarily, substantial compliance with 
statutory formalities in the execution of a 
will is sufficient in the absence of a sug- 
gestion of fraud, deception, undue influ- 



46 



Wills and Testaments 



§ 91-5-1 



ence or mental incapacity. Lyle v. Shan- 
non, 228 So. 2d 594 (Miss. 1969). 

It is the requisite to a valid will that it 
be executed as prescribed by statute. 
Boyles Coffee Co. v. Anderson, 218 So. 2d 
843 (Miss. 1969). 

No matter how earnestly one may de- 
sire and intend to make a will, a paper, 
although fully intended by the maker to 
be a will, is ineffective and invalid unless 
its execution meets statutory require- 
ments. Boyles Coffee Co. v. Anderson, 218 
So. 2d 843 (Miss. 1969). 

The purpose of statutes prescribing for- 
malities for the execution of wills is not to 
restrict the power of testator to dispose of 
his property, but it is to guard against 
mistakes, impositions, undue influences, 
fraud, deception, etc., which would divert 
the property of the testator from those 
intended by him or her to inherit same. 
Boyles Coffee Co. v. Anderson, 218 So. 2d 
843 (Miss. 1969). 

Although the intention of the testator is 
paramount in the construction of wills, 
the search for the testator's intention does 
not begin until there is a will executed in 
accordance with the requirements of this 
section [Code 1942, § 657]. Jones v. King, 
203 So. 2d 581 (Miss. 1967). 

An instrument executed by a husband 
and wife which purported to be their last 
will and testament but which was not 
witnessed by two subscribing witnesses 
and was neither wholly in the handwrit- 
ing of each, nor wholly in the handwriting 
of either, was invalid under the provisions 
of this section [Code 1942, § 657]. Seab v. 
Seab, 203 So. 2d 478 (Miss. 1967). 

A will was not executed within the re- 
quirements of this section [Code 1942, 
§ 657] where it appeared that after the 
witnesses, who were in a different room, 
had signed the instrument and the testa- 
trix's name had been signed thereto, it 
was then carried into the room of the 
testatrix who merely touched the pen. 
Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 
858 (1956). 

Methods of executing will, and who may 
execute one, are defined by statute. 
Didlake v. Ellis, 158 Miss. 816, 131 So. 267 
(1930). 

Publication and attestation of will may 
be by construction. Green v. Pearson, 145 
Miss. 23, 110 So. 862 (1927). 



The writing of a will by a witness, at the 
request of the deceased, and embodying 
therein the disposition the deceased de- 
sired to make of his property, and the 
signing of the will by the deceased, was a 
sufficient declaration by the latter that 
the paper he had signed was his last will 
and testament, it being unnecessary for 
him to so declare in appropriate words. 
Green v. Pearson, 145 Miss. 23, 110 So. 
862 (1927). 

Duly attested will need not be dated. 
Lee v. Stewart, 139 Miss. 287, 104 So. 89 
(1925). 

Where there was a good faith effort to 
execute will, no technical construction 
should be allowed to defeat its purpose. 
Better v. Hirsch, 115 Miss. 614, 76 So. 555 
(1917). 

If it appears from the face of a writing 
testamentary in its character that a con- 
templated voyage and the dangers inci- 
dent thereto were merely the occasion of 
its execution, and that the testator's death 
while on the voyage was not made a con- 
dition upon which its validity depended, it 
will be operative and may be probated 
after his return and subsequent death. In 
re Redhead's Estate, 83 Miss. 141, 35 So. 
761 (1904). 

13. —Codicil. 

Failure to execute codicil as required of 
will rendered it invalid but did not affect 
the will. Hawkins v. Duberry, 101 Miss. 
17, 57 So. 919 (1912). 

14. Signature or subscription. 

The Chancellor made no error in sub- 
mitting the issue to the jury of whether 
there was compliance with § 91-5-1, 
where contestants of a will specifically 
charged that the signature to the will was 
not the testator's, where proponents, in 
their answer, denied all such allegations, 
where all witnesses for the proponents 
and all evidence offered on their behalf 
indicated that the testator had signed the 
will without assistance, and where the 
proponents changed their testimony only 
after overwhelming evidence was offered 
by the contestants that, at the very least, 
the testator, who was 88 years old at the 
time the will was executed, was assisted 
in making her signature. Webster v. 
Kennebrew, 443 So. 2d 850 (Miss. 1983). 



47 



91-5-1 



Trusts and Estates 



A certificate of deposit payable to a 
decedent "P.O.D. (two named persons)" 
failed as a testamentary disposition by the 
decedent, since, among other things, it 
was neither in the handwriting of the 
decedent, nor signed by him, and did not 
otherwise conform to § 91-5-1. Rand v. 
Moore, 414 So. 2d 885 (Miss. 1981). 

A will was not executed within the re- 
quirements of this section [Code 1942, 
§ 657] where it appeared that after the 
witnesses, who were in a different room, 
had signed the instrument, and the testa- 
trix's name had been signed thereto, it 
was then carried into the room of the 
testatrix who merely touched the pen. 
Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 
858 (1956). 

This section [Code 1942, § 657] does not 
require the testator to sign in the presence 
of the witnesses. Phifer v. McCarter, 222 
Miss. 415, 76 So. 2d 258 (1954). 

Any signature or mark signed by the 
testator, or by another in his presence and 
at his express direction, to the will, as and 
for his completed signature, and acknowl- 
edged and adopted by him as such at the 
time, in the presence of subscribing wit- 
nesses, is a sufficient signing. Wallace v. 
Harrison, 218 Miss. 153, 65 So. 2d 456 
(1953). 

In a will contest, that the testatrix's 
name, which appeared beside her mark, 
was written there at her request, did not 
establish the invalidity of the will. 
Wallace v. Harrison, 218 Miss. 153, 65 So. 
2d 456 (1953). 

The words "sign" and "subscribe" in this 
section [Code 1942, § 657] are not synon- 
ymous but are used in different senses. 
Baker v. Baker's Estate, 199 Miss. 388, 24 
So. 2d 841 (1946). 

The section [Code 1942, § 657] is not 
qualified by Code 1942, § 700. A testator, 
though able to write, is not required to 
write his name to his will, but he may sign 
by mark. Sheehan v. Kearney, 82 Miss. 
688, 21 So. 41 (1896). 

Where the testator consents to have his 
hand guided by another in signing his 
will, it is sufficient. Watson v. Pipes, 32 
Miss. 451 (1856). 

15. Attestation. 

The chancery court correctly denied 
probate to a document offered as the will 



of a decedent, where the document was 
neither wholly written and subscribed by 
the testator nor attested by two or more 
credible witnesses in the presence of the 
testator as required by § 91-5-1, but was 
entirely typewritten, signed by the dece- 
dent, and had a certificate of a notary 
public that it had been "sworn to and 
subscribed before me" followed by the sig- 
nature and seal of the notary. The history 
of will contests in Mississippi supports the 
view that the requirements that there be 
to attesting witnesses to a will and, more- 
over, that it be attested by them in the 
presence of the testator, and that such 
attestation be evidence by the affixation of 
their signatures to document, are indis- 
pensable safeguards of the integrity of 
testamentary documents. Batchelor v. Es- 
tate of Powers, 348 So. 2d 776 (Miss. 
1977). 

Although this section [Code 1942, 
§ 657] states that a will, not wholly writ- 
ten and subscribed by the testator, must 
be attested by two or more creditable 
witnesses, the section means that wit- 
nesses must be competent rather than 
credible. Wallace v. Harrison, 218 Miss. 
153, 65 So. 2d 456 (1953). 

One of the purposes of having witnesses 
of the will is to determine the capacity of 
the testator to make the will. Cowart v. 
Cowart, 211 Miss. 459, 51 So. 2d 775 
(1951). 

The publication and attestation of a will 
may be by construction. One may speak by 
his actions as well as by word of mouth. 
Green v. Pearson, 145 Miss. 23, 110 So. 
862 (1927). 

Will signed by one attesting witness 
before signature by testatrix held valid. 
Gordon v. Parker, 139 Miss. 334, 104 So. 
77, 39A.L.R. 931(1925). 

Witness must be satisfied with maker's 
testamentary capacity. Smith v. Young, 
134 Miss. 738, 99 So. 370, 35 A.L.R. 69 
(1924). 

It was the purpose of the statute in 
requiring two witnesses to attest the will 
to have more than the mere signatures of 
two persons to the will. Maxwell v. Lake, 
127 Miss. 107, 88 So. 326 (1921). 

It was the duty of the attesting wit- 
nesses, under the statute, to observe and 
see that the will was executed by the 



48 



Wills and Testaments 



§ 91-5-1 



testator, and that he had capacity to exe- 
cute the will. Maxwell v. Lake, 127 Miss. 
107, 88 So. 326 (1921). 

"Attested" is broader than "subscribed." 
Maxwell v. Lake, 127 Miss. 107, 88 So. 326 
(1921). 

Word "credible" is synonymous with 
"competent." Swanzy v. Kolb, 94 Miss. 10, 
46 So. 549, 136 Am. St. R. 568, 18 Am. 
Ann. Cas. 1089 (1908). 

16. — Validity; particular circum- 

stances. 

In a will contest, it was error for the 
trial court to permit the jury to take into 
consideration the suspension of a license 
to practice law for mental aberration of 
the attesting witness, which occurred a 
little over 4 years subsequent to the exe- 
cution of the last will and testament, since 
that matter of itself would not determine 
the competence of the witness, and com- 
petence, not credibility, is the test. 
Briscoe's v. Briscoe, 255 So. 2d 313 (Miss. 
1971). 

Although under Code 1942, § 498 the 
testimony of only one living witness is 
sufficient to establish a will's proper exe- 
cution, proof of two signatures of wit- 
nesses is required to prove due execution 
where the witnesses to a will are de- 
ceased. Willis' Estate v. Willis, 207 So. 2d 
348 (Miss. 1968). 

The affidavits of two subscribing wit- 
nesses to a will were sufficient for the 
probate thereof in common form. Austin v. 
Patrick, 179 Miss. 718, 176 So. 714 (1937). 

Will was sufficiently attested where one 
of two witnesses took testator's acknowl- 
edgment instead of signing as a witness. 
Bolton v. Bolton, 107 Miss. 84, 64 So. 967 
(1914). 

Will was sufficiently attested where one 
witness signed on separate sheet of paper 
which was folded together with will. Bol- 
ton v. Bolton, 107 Miss. 84, 64 So. 967 
(1914). 

Devise to witness is void, but witness is 
competent to establish residue of will. 
Swanzy v. Kolb, 94 Miss. 10, 46 So. 549, 
136 Am. St. R. 568, 18 Am. Ann. Cas. 1089 
(1908). 

17. — Presence of witnesses. 

Where one of the witnesses to a will, a 
non-lawyer, helped prepare the will, had 



known the testator for more than 25 
years, was fully aware of the testator's 
motives for disinheriting all but one of his 
children, and could testify as to the testa- 
tor's capacity for executing the will, and 
the second witness testified that the tes- 
tator seemed fully capable of executing 
the will, it was properly held valid; that 
the will was prepared by a non-lawyer did 
not invalidate it. Hensley v. Harris, 870 
So. 2d 1227 (Miss. Ct. App. 2003), cert, 
denied, 870 So. 2d 666 (Miss. 2004). 

The attestation of a will that occurred 
outside the testator's physical presence 
was invalid, notwithstanding that the at- 
testing witness was the draftsman of the 
will and that his long time familiarity 
with the testator and his handwriting 
provided him with the assurances that the 
document was indeed the will of the tes- 
tator. McDevitt v. McDevitt, 755 So. 2d 
489 (Miss. Ct. App. 1999). 

A purported will did not meet the stat- 
utory requirements of an attested instru- 
ment where the document, which was 
entirely handwritten, only contained de- 
cedent's purported signature in the open- 
ing paragraph, where none of the three 
witnesses to the document saw, read, or 
heard the entire document, where no page 
of the document except the last was 
signed by a witness, and where no evi- 
dence showed that any witness had ob- 
served decedent affix her signature on the 
document or had heard her acknowledge 
that she had at any time signed it. Jay v. 
Thrash, 380 So. 2d 1273 (Miss. 1980). 

A telephone conversation between the 
testator and one of the witnesses to the 
will, in which the witness first asked the 
testator whether he had signed the will 
and received an affirmative reply prior to 
the witness' attestation, did not constitute 
the necessary "presence" of the witness to 
the signing for purposes of validating the 
will; the purpose of signing in the pres- 
ence of the testator is to allow the testator 
to know that the witnesses are attesting 
the testator's will and not another docu- 
ment, that the witnesses will know the 
same, that imposition or fraud is thus 
prevented by precluding the substitution 
of another will in place of that signed by 
the testator, and that the witnesses will be 
reasonably satisfied that the testator is of 



49 



91-5-1 



Trusts and Estates 



sound and disposing mind and capable of 
making a will. Jefferson v. Moore, 349 So. 
2d 1032 (Miss. 1977). 

A will was not executed within the re- 
quirements of this section [Code 1942, 
§ 657] where it appeared that after the 
witnesses, who were in a different room, 
had signed the instrument, and the testa- 
trix's name had been signed thereto, it 
was then carried into the room of the 
testatrix who merely touched the pen. 
Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 
858 (1956). 

Where the testator signed his will at the 
end and exhibited it to two witnesses 
telling them it was his will and requesting 
them to sign, and one of the witnesses 
read the will in the presence of the testa- 
tor and the other witness after which both 
witnesses attached their signatures in 
testator's presence, the will was valid. 
Phifer v. McCarter, 222 Miss. 415, 76 So. 
2d 258 (1954). 

The necessity of two witnesses in the 
making of a will has no application to 
proof of a promise to make a will. Boggan 
v. Scruggs, 200 Miss. 747, 29 So. 2d 86 
(1947), overruled on other grounds, 
Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 
628 (1948). 

Subscribing witnesses to wills are not 
required to sign in the presence of each 
other. Austin v. Patrick, 179 Miss. 718, 
176 So. 714 (1937). 

Subscribing witnesses to wills are not 
required to see the testator sign the will, 
but is enough if testator produces the will, 
declares it to be his will, and states that 
signature appended thereto is his and 
that he wrote it. Austin v. Patrick, 179 
Miss. 718, 176 So. 714 (1937). 

Evidence of subscribing witness that 
testatrix told him that instrument was 
her will, that she had signed it and 
wanted him to sign it as a witness, and 
that he did so in her presence, and testi- 
mony of other witness who did not sign in 
presence of other subscribing witness and 
was not present when other witness 
signed, that testatrix told him instrument 
was her will and requested him to sign it 
as a witness, was sufficient to authorize 
admission of will to probate in solemn 
form. Austin v. Patrick, 179 Miss. 718, 176 
So. 714 (1937). 



A request to sign a will as a witness, 
made in the presence of the testator by 
one intrusted with the preparation of the 
will, is equivalent to a request by the 
testator, and it is sufficient that enough is 
said and done in the presence and with 
the knowledge of the testator to make the 
witnesses understand that he desires 
them to know that the paper is his will, 
and that they are to be the witnesses 
thereto. Green v. Pearson, 145 Miss. 23, 
110 So. 862 (1927). 

Where a testator did not sign his will in 
the presence of one of the witnesses, did 
not declare his signature, did not identify 
the paper or signature, and did not de- 
clare it to be his will, it was improper to 
instruct the jury that the will as duly and 
legally executed. Maxwell v. Lake, 127 
Miss. 107, 88 So. 326 (1921). 

Will duly attested by two witnesses is 
valid although third witness signed when 
other two were not present. Gore v. Ligon, 
105 Miss. 652, 63 So. 188 (1913). 

Attestation held sufficient where testa- 
tor directed another to sign his name for 
him to the will and then sign it as witness, 
and afterwards exhibited it to two other 
persons stating it was his will and having 
them sign as witnesses. Miller v. Miller, 96 
Miss. 526, 51 So. 210 (1910). 

18. Particular instruments as valid 
testamentary instruments. 

The words on a certificate of deposit 
"payable on death" were testamentary in 
character and constituted an attempt to 
make a negotiable instrument a will, thus 
requiring compliance with this section. 
Will of Collier v. Guaranty Bank & Trust 
Co., 381 So. 2d 1338 (Miss. 1980). 

An instrument executed in the manner 
required by the statute with the express 
intent of vesting the testator's property 
upon his death constitutes a valid testa- 
mentary disposition, no matter what 
name the testator may give it. Peebles v. 
Rodgers, 211 Miss. 8, 50 So. 2d 632 (1951). 

Provision in an instrument which in- 
tends to convey all the lands the grantor 
owns but the grantor to live on and control 
the land during his life time and on his 
death the instrument to take effect and 
the title to vest in the grantee, was testa- 
mentary in character. Peebles v. Rodgers, 
211 Miss. 8, 50 So. 2d 632 (1951). 



50 



Wills and Testaments 



91-5-1 



A letter clearly indicating that its writer 
had her death in mind when writing it, 
and intended by it to make the gifts set 
forth therein effective when that event 
should occur, constituted all that is neces- 
sary to a will. In re Mey's Estate, 200 
Miss. 548, 28 So. 2d 125 (1946). 

An instrument in the form of a deed 
which provided that the grantors were to 
retain possession, control and occupancy 
of the lands during their lifetime and then 
vest in the purported grantee, "but not 
until the death of both grantors herein, 
does the title pass," was testamentary in 
character since it did not meet the re- 
quirement of a deed that it must convey 
some estate effective upon delivery. Coul- 
ter v. Carter, 200 Miss. 135, 26 So. 2d 344 
(1946). 

Test to determine whether instrument 
is will or deed set forth; instrument will 
operate according to legal effect regard- 
less of denomination given by maker. 
Knight v. Knight, 133 Miss. 74, 97 So. 481 
(1923). 

Letter not containing dispositive word 
is not a will, in absence of evidence that it 
was intended to be testamentary. Sullivan 
v. Jones, 130 Miss. 101, 93 So. 353 (1922). 

Letter stating writer held property to 
protect interest of addressee, that he 
would later give her a deed to it, and that 
it was to go to her at his death, held 
declaration of trust and not a will. Morgan 
v. Hayward, 115 Miss. 354, 76 So. 262 
(1917). 

Instrument in form of deed to take effect 
only after grantor's death, held testamen- 
tary and not a deed. Simpson v. McGee, 
112 Miss. 344, 73 So. 55, 11 A.L.R. 4 
(1916). 

Letter of testatrix stating disposition to 
be made of her property unless she made 
another and more formal will, fully writ- 
ten and subscribed by her, was properly 
admitted to probate. Hewes v. Hewes, 110 
Miss. 826, 71 So. 4 (1916). 

An instrument, executed by plaintiffs' 
father and mother, providing that in con- 
sideration of five dollars and parental love 
and affection, the parents sold and 
granted to plaintiffs, as joint owners, cer- 
tain lands in fee simple, with a reserva- 
tion of possession and control in the grant- 
ors so long as they should live, was not a 



will, but a deed, with the reservation of a 
life estate to the grantors. Myers v. 
Viverett, 110 Miss. 334, 70 So. 449 (1915). 

Instrument executed by decedent ex- 
pressing her wish as to devolution of her 
property in case her husband survived her 
was not subject to probate as her will on 
her surviving her husband. Du Sauzay v. 
Du Sauzay, 105 Miss. 839, 63 So. 273 
(1913). 

Letter written by decedent to brother 
stating how he wished his property dis- 
posed of is a valid will, if he did not deliver 
it but kept it and treated it as his will. 
Prather v. Prather, 97 Miss. 311, 52 So. 
449 (1910). 

Parol agreement by two sisters that 
survivor should have certain personal 
property is not testamentary. Marshall v. 
Stratton, 96 Miss. 465, 51 So. 132 (1910). 

19. Holographic wills. 

A purported holographic will did not 
comport with the execution requirements 
of § 91-5-1 and was therefore invalid, 
where the will was a one-page document 
with writing on the front and back, the 
testator's name appeared in the first line 
of the will but did not appear again, and 
the will was not signed at the end. 
Amyotte v. Hollingsworth, 585 So. 2d 731 
(Miss. 1991). 

There is no legal requirement that sig- 
nature "subscribing" holographic will 
must be placed on the same sheet of paper 
as the dispositive provisions of the will, so 
long as the signature is at the conclusion 
of the will; and the part of the will con- 
taining the signature may be mechani- 
cally attached to the other part of the will 
so that it may be identified as a part 
thereof. Lyle v. Shannon, 228 So. 2d 594 
(Miss. 1969). 

The intent of one to make a will, insofar 
as probate of a holographic will is con- 
cerned, is immaterial; for the question is 
whether the will actually is executed in 
accordance with the statute of the state. 
Boyles Coffee Co. v. Anderson, 218 So. 2d 
843 (Miss. 1969). 

With respect to holographic wills, this 
section [Code 1942, § 657] has been con- 
strued to mean that such a will must be 
signed at the end of a document, testa- 
mentary in character, which shows on its 
face that the testamentary purpose 



51 



91-5-1 



Trusts and Estates 



therein expressed is completed, that noth- 
ing which follows the signature may be 
considered, and if the writing does not 
meet the requirements of this section the 
intent of the writer is immaterial. Jones v. 
King, 203 So. 2d 581 (Miss. 1967). 

Holographic wills must be subscribed by 
testator, or another for him, and nothing 
can be effective which appears after and 
beneath such signature. In re George's 
Estate, 208 Miss. 734, 45 So. 2d 571 
(1950). 

Unsigned postscript cannot be treated 
as part of dispositive provisions of letter 
offered as holographic will. In re George's 
Estate, 208 Miss. 734, 45 So. 2d 571 
(1950). 

Letter constituting valid holographic 
will must be of testamentary character, 
wholly written, dated, and signed by tes- 
tator. Sullivan v. Jones, 130 Miss. 101, 93 
So. 353 (1922). 

Holographic will must be both written 
and subscribed by testator. Better v. 
Hirsch, 115 Miss. 614, 76 So. 555 (1917). 

A letter testatmentary in its character 
wholly written, dated and signed by the 
testator is a valid holographic will al- 
though it contains a request that the per- 
son to whom it was addressed should keep 
its contents private. Buffington v. Thomas, 
84 Miss. 157, 36 So. 1039, 105 Am. St. R. 
423 (1904). 

20. — Date requirement. 

An otherwise valid holographic will is 
not invalid for lack of a date, there being 
nothing in the statute which requires that 
a holographic will be dated. Vaughn v. 
General Cable Corp., 248 So. 2d 798 
(Miss. 1971). 

21. — Reference to extrinsic docu- 

ments. 

Extrinsic document, by reference made 
part of will wholly written by testator, 
must also be so written, otherwise the 
whole will would not be in the handwrit- 
ing of testator. Hewes v. Hewes, 110 Miss. 
826, 71 So. 4 (1916). 

22. — Construction. 

In giving legal effect to an instrument 
prepared by a lay person, the court should 
endeavor to ascertain what the words con- 
tained in it meant to the author, not 



simply what they could connote to a law- 
yer. Thus, where a holographic will pro- 
vided that if the testator preceded his wife 
in death "all of my earthly possessions be 
received by her," the use of the ordinary 
words "possessions" and "receive," with no 
further qualification or restriction, indi- 
cated that the testator intended for his 
wife to receive and own everything he 
possessed and owned. Dedeaux v. Dedeax, 
584 So. 2d 419 (Miss. 1991). 

In a will contest, requiring construction 
of a holographic will, in view of evidence 
that the testatrix' use and enjoyment of 
land was not restricted and that there was 
no fence defining a "yard" in which a 
dwelling house and out buildings were 
located, and the testatrix had been accus- 
tomed to referring to the entire place by 
the term "home", her bequest of one-half 
the value of the "home" was not a bequest 
of one-half the value of the house and 
"yard" but of one-half the value of the 
entire 58.4 acres of land on which the 
house was situated. Carlisle v. Estate of 
Carlisle, 252 So. 2d 894 (Miss. 1971). 

In construing a will, consideration must 
be given to all the provisions of the instru- 
ment and every part thereof taken to- 
gether, rather than to any particular 
clause, sentence or form of words, and this 
is particularly true with respect to a holo- 
graphic will since the words and terms are 
those of the testator who is also the writer 
and the will is not therefore as subject to 
mistake through misunderstanding as 
might be the case where the instrument is 
drawn by one other than the testator. 
Carlisle v. Estate of Carlisle, 252 So. 2d 
894 (Miss. 1971). 

Fact that wife's holographic will re- 
ferred to a request of her husband was no 
more than an explanation as to her reason 
for devising the property as she did, and 
was not an expression of the testamentary 
intent of the husband. Carlisle v. Estate of 
Carlisle, 233 So. 2d 803 (Miss. 1970). 

A holographic will written and sub- 
scribed by the decedent which, after mak- 
ing certain specific bequests concluded 
with the statement, "I will finish this 
later," was properly admitted to probate, 
for the testamentary purpose as far as 
expressed in the will was complete. 
Maines v. Davis, 227 So. 2d 844, 46 
A.L.R.3d 934 (Miss. 1969). 



52 



Wills and Testaments 



§ 91-5-1 



The intent of one to make a will, insofar 
as probate of a holographic will is con- 
cerned, is immaterial; for the question is 
whether the will actually is executed in 
accordance with the statute of the state. 
Boyles Coffee Co. v. Anderson, 218 So. 2d 
843 (Miss. 1969). 

23. — Particular instruments as valid 
holographic wills. 

A page of a scratch pad on which ap- 
peared, in the decedent's handwriting: 
"Madge Do what should be done and com- 
plete my work. I will all to you." , followed 
by the decedent's signature and the abbre- 
viation for Thursday, constituted a valid 
holographic will, though undated. Vaughn 
v. General Cable Corp., 248 So. 2d 798 
(Miss. 1971). 

A holographic will written and sub- 
scribed by the decedent which, after mak- 
ing certain specific bequests concluded 
with the statement, "I will finish this 
later," was properly admitted to probate, 
for the testamentary purpose as far as 
expressed in the will was complete. 
Maines v. Davis, 227 So. 2d 844, 46 
A.L.R.3d 934 (Miss. 1969). 

Letter written wholly in sender's hand- 
writing expressing desire to give ad- 
dressee interest in plantation and saying, 
"I want you to begin fixing things that you 
may get the rent for 1947," and expressing 
intent to enter upon negotiations for pur- 
chase of four lots, is not testamentary or 
dispositive, but merely expresses desire 
with purpose to later effectuate it, and 
cannot be probated as holographic will of 
writer. In re George's Estate, 208 Miss. 
734, 45 So. 2d 571 (1950). 

A simple statement written by the 
signer that she gives everything she owns 
without bond to her sister named, which 
writing is kept in the signer's possession 
until the time of her death, is effective as 
a holographic will, even though the day of 
the month when executed is not specified 
by the signer who could not possibly have 
attained her majority during the particu- 
lar month of the year shown by the writ- 
ing. Estes v. Estes, 200 Miss. 541, 27 So. 
2d 854 (1946). 

Instrument entirely in handwriting of 
deceased, with caption consisting of the 



name of deceased followed by the words 
"writing this," where no signature, date or 
other writing appeared underneath the 
last paragraph of the instrument, was 
inadmissible to probate as a holographic 
will, since the instrument was not sub- 
scribed to within the meaning of this sec- 
tion [Code 1942, § 657]. Words appearing 
at top and as caption were mere words of 
description and identification of the per- 
son writing the instrument and did not 
constitute a signature in execution of the 
instrument. Baker v. Baker's Estate, 199 
Miss. 388, 24 So. 2d 841 (1946). 

A letter testatmentary in its character 
wholly written, dated and signed by the 
testator is a valid holographic will al- 
though it contains a request that the per- 
son to whom it was addressed should keep 
its contents private. Buffington v. Thomas, 
84 Miss. 157, 36 So. 1039, 105 Am. St. R. 
423 (1904). 

An holographic will complete and per- 
fect in itself is not invalidated because the 
words "my will", a mere caption, were 
written above it on the same sheet of 
paper by the hand of another than the 
testator. Baker v. Brown, 83 Miss. 793, 36 
So. 539, 1 Am. Ann. Cas. 371 (1904). 

24. Probate; requirement, generally. 

Will ineffectual as instrument of title 
until probated. Virginia Trust Co. v. Bu- 
ford, 123 Miss. 572, 86 So. 356 (1920), 
error overruled, 123 Miss. 598, 86 So. 516 
(1920). 

25. — Practice and procedure. 

In will contest where more than one 
ground is asserted challenging validity of 
will, court should require jury to return 
special verdict as authorized by Missis- 
sippi Rule of Civil Procedure 49 to enable 
reviewing court to determine true verdict 
of jury and render opinion in accord. 
Street Medical Found, v. Watts, 475 So. 2d 
819 (Miss. 1985). 

Giving of jury instruction addressing 
issue of which nonprofit corporation is 
proper beneficiary under will is reversible 
error where primary issue presented is 
testatmentary capacity of testatrix, par- 
ticularly where instruction is peremptory 
in obligating jury to find for contestant on 
uncontradicted facts. Matter of Street 



53 



91-5-1 



Trusts and Estates 



Medical Found, v. Watts, 475 So. 2d 819 
(Miss. 1985). 

The trial court in an action contesting a 
will properly refused jury instructions of- 
fered by the will proponents, where one 
was a "boiler plate" instruction purporting 
to set forth the law on who might make a 
will, which contained mere abstract prin- 
ciples of law, did not apply to the specific 
facts of the case, and was erroneous in 
that it failed to take into account § 91-5-1, 
and where the other instruction correctly 
recited the law but did not apply to the 
specific facts of the case. Estate of Lawler 
v. Weston, 451 So. 2d 739 (Miss. 1984). 

Where contestants attempt to show sub- 
sequent will was valid, instruction that if 
contested will was not believed by jury to 
be the true and last will beyond a reason- 
able doubt, it should be held invalid, is 
erroneous. Williams v. Morehead, 116 
Miss. 653, 77 So. 658 (1918). 

26. —Evidence. 

A person contesting a will should be 
allowed to examine the subscribing wit- 
nesses to the will as to all matters rele- 
vant to the will's execution and to inquire 
into surrounding facts and circumstances 
so that the court may determine if the will 
was properly signed and attested, if attes- 
tation be required, and if the testator was 
mentally competent and free of undue 
influence. Chapman v. Chapman, 264 So. 
2d 395 (Miss. 1972). 

Presumption against intestacy is only a 
presumption which must yield to facts, 
and cannot be applied to change or write 
new will so as to dispose of property under 
a will which makes no such disposition. 
Williams v. Gooch, 208 Miss. 223, 44 So. 
2d 57 (1950). 

In proceeding by residuary legatee to 
recover his share of estate, introduction in 
evidence of proceedings before chancery 
clerk in vacation admitting will to probate 
in common form makes out prima facie 
case of validity of will. Rice v. McMullen, 
207 Miss. 706, 43 So. 2d 195 (1949). 

Lay witnesses are competent to testify 
on issue of capacity of testator to make 
will on date of its alleged execution where 
they first give facts upon which their opin- 
ions are based. Blalock v. Magee, 205 
Miss. 209, 38 So. 2d 708 (1949). 



Notwithstanding transcript, in view of 
entire testimony, witness held not to have 
said will was typewritten. Watkins v. Wat- 
kins, 142 Miss. 210, 106 So. 753 (1926). 

Testimony of subscribing witness best 
evidence of execution. Smith v. Young, 134 
Miss. 738, 99 So. 370, 35 A.L.R. 69 (1924). 

Undue influence may be made out by 
circumstantial evidence. Jamison v. 
Jamison, 96 Miss. 288, 51 So. 130 (1910). 

27. Admissibility. 

Where testatrix, who had a daughter 
named Rosalind Gwin Hutton Johnson 
and a granddaughter named Rosalind 
Gwin Hutton, devised land to "Rosalind 
Gwin Hutton," the will was ambiguous as 
to the identity of the devisee, and evidence 
extrinsic to the will was admissible to 
identify the intended devisee. Hutton v. 
Hutton, 233 Miss. 458, 102 So. 2d 424 
(1958). 

In contest proceeding arising out of offer 
of letter for probate as holographic will of 
writer, later unsigned will prepared at 
writer's suggestion, letter with reference 
to unsigned will, circumstances surround- 
ing preparation of documents, their con- 
tents, and action of parties with reference 
thereto are competent evidence upon 
question of whether writer intended letter 
as will and so considered it, and whether, 
in legal effect, it was will. In re George's 
Estate, 208 Miss. 734, 45 So. 2d 571 
(1950). 

In will contest, admission in evidence of 
opinions of lay witnesses as to mental 
incapacity of testatrix to make will on 
date of its alleged execution followed by 
statement by witnesses of facts or inci- 
dents in connection with their acquain- 
tance, association and experience with 
testatrix on which opinion is based is not 
reversible error in absence of objection 
interposed by proponents to expression of 
these opinions by witnesses for contes- 
tants on ground that they had not previ- 
ously stated facts upon which their opin- 
ions were given, objection on ground that 
profferred testimony involved opinion of 
lay witness being insufficient. Blalock v. 
Magee, 205 Miss. 209, 38 So. 2d 708 
(1949). 

Parol evidence to effect that deceased 



54 



Wills and Testaments 



§ 91-5-1 



stated that she had made her will was 
inadmissible on question whether alleged 
holographic will was intended to be and in 
fact was "subscribed" within the meaning 
of this section [Code 1942, § 657], even 
though parol evidence generally is compe- 
tent to show whether an instrument was 
intended to be of testamentary character 
where its meaning in that behalf is not 
clearly shown on the face thereof, since 
there was no issue as to whether the 
instrument was testamentary in charac- 
ter. Baker v. Baker's Estate, 199 Miss. 
388, 24 So. 2d 841 (1946). 

Evidence as to how testator acquired 
certain personal property about 23 years 
prior to making of his will is inadmissible, 
as too remote, on issue of testamentary 
capacity, especially where it is not shown 
that any of this property was in existence 
at time of testator's death. Norman v. 
Norman, 196 Miss. 597, 18 So. 2d 130 
(1944). 

Error by trial court in excluding evi- 
dence as to timber cruise on testator's 
lands, in suit contesting will on grounds of 
undue influence and lack of testamentary 
capacity, did not constitute reversible er- 
ror in view of other evidence admitted 
showing value and extent of testator's 
estate. Norman v. Norman, 196 Miss. 597, 
18 So. 2d 130 (1944). 

Exclusion of evidence of attorney draw- 
ing will held harmless in will contest 
where proponents granted peremptory in- 
struction. Isom v. Canedy, 128 Miss. 64, 88 
So. 485 (1921). 

Opinion evidence that testatrix was un- 
der influence of a legatee is inadmissible. 



Scally v. Wardlaw, 123 Miss. 857, 86 So. 
625 (1920). 

Declarations of sole beneficiary of a will 
shortly after testatrix's death held incom- 
petent in will contest on ground of forgery, 
he being a witness in his own behalf and 
testifying he wrote the will. Liles v. May, 
105 Miss. 807, 63 So. 217 (1913). 

Whether writing was intended as will 
may be shown by parol. Prather v. 
Prather, 97 Miss. 311, 52 So. 449 (1910). 

Declarations of testator that he would 
make no will held incompetent. Miller v. 
Miller, 96 Miss. 526, 51 So. 210 (1910). 

28. — Burden of proof. 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, there is but a single 
issue-will or no will, and burden is on 
proponent throughout. Blalock v. Magee, 
205 Miss. 209, 38 So. 2d 708 (1949). 

Burden of proof on proponents of will as 
to capacity and undue influence, but they 
make out prima facie case by introduction 
of record of probate in common form. 
Gathings v. Howard, 122 Miss. 355, 84 So. 
240 (1920). 

Proponents of will have burden of giving 
reasonable explanation of unnatural char- 
acter of will. Jamison v. Jamison, 96 Miss. 
288, 51 So. 130 (1910). 

Where on an issue devisavit vel non the 
question is whether the testator was sane 
or insane the contestants are not required 
to prove his sanity beyond all reasonable 
doubt. King v. Rowan, 82 Miss. 1, 34 So. 
325 (1903). 



RESEARCH REFERENCES 



ALR. Incorporation in will of extrinsic 
document not in existence at date of will. 3 
A.L.R.2d 682. 

Remedies during promisor's lifetime on 
contract to convey or will property at 
death in consideration of support or ser- 
vices. 7 A.L.R.2d 1166. 

Power and capacity of bank to take 
devise or bequest. 8 A.L.R.2d 454. 

Right of an administrator with the will 
annexed, or trustee other than the person 
named in the will as such, to execute 



power of sale conferred by will. 9 A.L.R.2d 
1324. 

Taking per stripes or per capita under 
will. 13 A.L.R.2d 1023. 

Devisability of possibility of reverter, or 
of right of re-entry for breach of condition 
subsequent. 16 A.L.R.2d 1246. 

Enlarged interest acquired by testator 
after execution of will as passing by devise 
or bequest. 18 A.L.R.2d 519. 

Nature of remainders created by will 
giving life estate to spouse of testator, 



55 



§ 91-5-1 



Trusts and Estates 



with remainder to be divided equally be- 
tween testator's heirs and spouse's heirs. 
19 A.L.R.2d 371. 

Place of signature of holographic wills. 
19 A.L.R.2d 926. 

Codicil as validating will or codicil 
which was invalid or inoperative at time 
of its purported execution. 21 A.L.R.2d 
821. 

Effect of testator's attempted physical 
alteration of will after execution. 24 
A.L.R.2d 514. 

Effectiveness of nuncupative will where 
essential witness thereto is beneficiary. 28 
A.L.R.2d 796. 

Term "next of kin" used in will, as refer- 
ring to those who would take in cases of 
intestacy under distribution statutes, or 
to nearest blood relatives of designated 
person or persons. 32 A.L.R.2d 296. 

Validity and effect of promise not to 
make a will. 32 A.L.R.2d 370. 

What passes under term "possessions" 
in will. 33 A.L.R.2d 550. 

Codicil as reviving revoked will or codi- 
cil. 33 A.L.R.2d 922. 

Interlineations and changes appearing 
on face of will. 34 A.L.R.2d 619. 

Validity and effect of provision in will 
regulating or controlling beneficiary's res- 
idence. 35 A.L.R.2d 387. 

Validity of will written on disconnected 
sheets. 38 A.L.R.2d 477. 

Letter as a will or codicil. 40 A.L.R.2d 
698. 

"Attestation" or "witnessing" of will, re- 
quired by statute, as including witnesses' 
subscription. 45 A.L.R.2d 1365. 

What passes under term "personal es- 
tate" in will. 53 A.L.R.2d 1059. 

Failure of attesting witness to write or 
state place of residence as affecting will. 
55 A.L.R.2d 1053. 

Sufficiency of publication of will. 60 
A.L.R.2d 124. 

Competency of named executor as sub- 
scribing witness to will. 74 A.L.R.2d 283. 

Sufficiency, as to form, of signature to 
holographic will. 75 A.L.R.2d 895. 

Effect of guardianship of adult on testa- 
mentary capacity. 89 A.L.R.2d 1120. 

Requirement that holographic will be 
entirely in handwriting of testator as af- 
fected by appearance printed of matter or 
handwriting of another. 89A.L.R.2d 1198. 



Validity of will as affected by fact that 
witnesses signed before testator. 91 
A.L.R.2d 737. 

Validity of a will signed by testator with 
the assistance of another. 98 A.L.R.2d 824. 

Validity of will signed by testator's 
mark, stamp, or symbol, or partial or 
abbreviated signature. 98 A.L.R.2d 841. 

Sufficiency of testator's acknowledg- 
ment of signature from his conduct and 
the surrounding circumstances. 7 
A.L.R.3d 317. 

Wills: Testator's illiteracy or lack of 
knowledge of language in which will is 
written as affecting its validity. 37 
A.L.R.3d 889. 

Effect of residuary clause to pass prop- 
erty acquired by testator's estate after his 
death. 39 A.L.R.3d 1390. 

Wills: when is will signed at "end" or 
"foot" as required by statute. 44 A.L.R.3d 
701. 

Change in stock or corporate structure, 
or split, or substitution of stock of corpo- 
ration, as affecting bequest of stock. 46 
A.L.R.3d 7. 

Effect upon testamentary nature of doc- 
ument of expression therein of intention 
to make more formal will, further disposi- 
tion of property, or the like. 46 A.L.R.3d 
938. 

Restrictions on transfer of corporate 
stock as applicable to testamentary dispo- 
sitions thereof. 61 A.L.R.3d 1090. 

Construction of reference in will to stat- 
ute where pertinent provisions of statute 
are subsequently changed by amendment 
or repeal. 63 A.L.R.3d 603. 

Partial invalidity of will: may parts of 
will be upheld notwithstanding failure of 
other parts for lack of testamentary men- 
tal capacity or undue influence. 64 
A.L.R.3d 261. 

Effect of doubtful construction of will 
devising property upon marketability of 
title. 65 A.L.R.3d 450. 

Ademption of legacy of business or in- 
terest therein. 65 A.L.R.3d 541. 

Measure of damages for breach of con- 
tract to will property. 65 A.L.R.3d 632. 

Wills: separate gifts to same person in 
same or substantially same amounts, 
made in separate wills or codicils, as cu- 
mulative or substitutionary. 65 A.L.R.3d 
1325. 



56 



Wills and Testaments 



§ 91-5-1 



Necessity that attesting witness realize 
instrument was intended as will. 71 
A.L.R.3d 877. 

Existence of illicit or unlawful relation 
between testator and beneficiary as evi- 
dence of undue influence. 76 A.L.R.3d 743. 

Disposition of insurance proceeds of 
personal property specifically bequeathed 
or devised. 82 A.L.R.3d 1261. 

Wills: Effect of gift to be disposed of "as 
already agreed" upon or the like. 85 
A.L.R.3d 1181. 

Sufficiency of evidence that will was not 
accessible to testator for destruction, in 
proceeding to establish lost will. 86 
A.L.R.3d 980. 

Wills: condition that devisee or legatee 
shall renounce, embrace, or adhere to 
specified religious faith. 89 A.L.R.3d 984. 

Effect of testamentary gift to child con- 
ditioned upon specified arrangements for 
parental control. 11 A.L.R.4th 940. 

Validity of testamentary exercise of 
power of appointment by donee sane when 
will was executed but insane thereafter. 
19 A.L.R.4th 1002. 

Liability in damages for interference 
with expected inheritance or gift. 22 
A.L.R.4th 1229. 

Word "child" or "children" in will as 
including grandchild or grandchildren. 30 
A.L.R.4th 319. 

Requirement that holographic will, or 
its material provisions, be entirely in tes- 
tator's handwriting as affected by appear- 
ance of some printed or written matter not 
in testator's handwriting. 37 A.L.R.4th 
528. 

Sufficiency of evidence to support grant 
of summary judgment in will probate or 
contest proceedings. 53 A.L.R.4th 561. 

Testamentary direction to devisee to 
pay stated sum of money to third party as 
creating charge or condition or as impos- 
ing personal liability on devisee for non- 
payment. 54 A.L.R.4th 1098. 

Proper execution of self-proving affida- 
vit as validating or otherwise curing de- 
fect in execution of will itself. 1 A.L.R.5th 
965. 

Alzheimer's disease as affecting testa- 
mentary capacity. 47 A.L.R.5th 523. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 47 et 
seq. 



20 Am. Jur. Legal Forms 2d, Wills 
§§ 266:1 et seq. 

9 Am. Jur. Trials, Will Contests §§ 15 et 
seq. 

1 Am. Jur. Proof of Facts 2d, Mistake in 
the Inducement of Wills, §§ 5 et seq. 
(proof of mistake in the inducement). 

2 Am. Jur. Proof of Facts 2d, Mistake in 
Naming or Designating Beneficiary in 
Will, §§ 6 et seq. (proof of testator's mis- 
take in designating beneficiary in will). 

6 Am. Jur. Proof of Facts 2d, Intentional 
Omission of Child from Will, §§ 8 et seq. 
(proof of intentional omission of child from 
will). 

18 Am. Jur. Proof of Facts 2d 1, Men- 
tally Disordered Testator's Execution of 
Will During Lucid Interval. 

36 Am. Jur. Proof of Facts 2d 109, Un- 
due Influence in Execution of Will. 

40 Am. Jur. Proof of Facts 2d 339, Lack 
of Testamentary Capacity by Reason of 
Insane Delusion. 

17 Am. Jur. Proof of Facts 3d 219, 
Alzheimer's and Multi-Infarct Dementia 
— Incapacity to Execute Will. 

19 Am. Jur. Proof of Facts 3d 335, AIDS 
Dementia — Incapacity to Execute Will. 

CJS. 95 C.J.S., Wills §§ 3 et seq. 

Law Reviews. 1987 Mississippi Su- 
preme Court Review, Trusts. 57 Miss. L. J. 
555, August, 1987. 

Weems and Evans, Mississippi law of 
intestate succession, wills, and adminis- 
tration and the proposed Mississippi Uni- 
form Probate Code: a comparative analy- 
sis. 62 Miss. L. J. 1, Spring, 1992. 

Practice References. Robinson and 
Mobley, Pritchard on the Law of Wills and 
Administration of Estates, Fifth Edition 
(Michie). 

Burke, Friel, and Gagliardi, Modern Es- 
tate Planning, Second Edition (Matthew 
Bender). 

Freeman and Rapkin, Planning for 
Large Estates (Matthew Bender). 

Schoenblum, Estate Planning Forms 
and Clauses with CD Rom (Anderson Pub- 
lishing). 

Christensen, International Estate Plan- 
ning, Second Edition (Matthew Bender). 

Murphy's Will Clauses: Annotations 
and Forms with Tax Effects (Matthew 
Bender). 



57 



§ 91-5-3 



Trusts and Estates 



Nossaman and Wyatt, Trust Adminis- 
tration and Taxation (Matthew Bender). 

Bickel, Living Trusts: Forms and Prac- 
tice (Matthew Bender). 



Estate Planning 

(LexisNexis). 



Package (CD-ROM) 



§ 91-5-3. Revocations. 

A devise so made, or any clause thereof, shall not be revocable but by the 
testator or testatrix destroying, canceling, or obliterating the same, or causing 
it to be done in his or her presence, or by subsequent will, codicil, or 
declaration, in writing, made and executed. Every last will and testament 
made when the testator or testatrix had no child living, wherein any child he 
or she might have is not provided for or not mentioned, if at the time of his or 
her death he or she have a child, or if the testator leave his wife enceinte of a 
child who shall be born, shall have no effect during the life of any such 
after-born child and shall be void unless the child die without having been 
married, or without leaving issue capable of inheriting, and before he or she 
shall have attained twenty-one years. The estate, both real and personal, so 
devised shall descend to such child in the same manner as if the testator or 
testatrix had died intestate, subject, nevertheless, to the bequests made in the 
last will and testament in case of the death of such child before marriage, or 
without issue capable of inheriting, and under the age of twenty-one years. 
When a testator shall leave children born and his wife enceinte, the posthu- 
mous child or children, if unprovided for by settlement and neither provided for 
nor disinherited, but only pretermitted, by the last will and testament, shall 
succeed to the same portion of the father's estate as such child or children 
would have been entitled to if the father had died intestate, towards raising 
which portion the devisees and legatees shall contribute proportionably out of 
the parts devised and bequeathed to them by the same will and testament. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (15); 1857, ch. 60, art. 35; 
1871, § 2389; 1880, § 1263; 1892, § 4489; Laws, 1906, § 5079; Hemingway's 
1917, § 3367; Laws, 1930, § 3551; Laws, 1942, § 658. 

Cross References — Limitation upon death without issue, see § 89-1-13. 
Descent and distribution generally, see §§ 91-1-1 et seq. 

JUDICIAL DECISIONS 



1. In general. 

2. Requirements — mental capacity. 

3. — Intent to revoke. 

4. By instrument of revocation. 

5. By subsequent will. 

6. By codicil. 

7. By destruction or obliteration. 

8. — Presumptive animo revocandi. 

9. — Destruction of one of multiple cop- 

ies. 

10. — Marginal notation. 

11. Implied revocation; generally. 



12. — Subsequent inconsistent instru- 

ment. 

13. Joint wills. 

14. Pleading and practice. 

15. Evidence — sufficiency. 

16. —Parol. 

17. Equity; promise not to revoke. 

1. In general. 

Generally, revocation of a will can be 
accomplished only by physical destruction 
of the will or by subsequent will, codicil, or 



58 



Wills and Testaments 



§ 91-5-3 



declaration, in writing, made and exe- 
cuted. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

Mississippi Code § 91-5-3 provides the 
only means by which a will may be ex- 
pressly revoked. Trotter v. Trotter, 490 So. 
2d 827 (Miss. 1986). 

Revocation of a will is a matter of in- 
tent, except in those instances in which it 
occurs by operation of law from a change 
in circumstances subsequent to the execu- 
tion of the will. McCormack v. Warren, 228 
Miss. 617, 89 So. 2d 702 (1956). 

Statute pertaining to revocations of 
wills applies only to express revocation, 
and has no application to an implied revo- 
cation. Holcomb v. Holcomb, 173 Miss. 
192, 159 So. 564 (1935). 

This section [Code 1942, § 658] pro- 
vides sole method for expressly revoking 
will. Minor v. Russell, 126 Miss. 228, 88 
So. 633 (1921). 

2. Requirements — mental capacity. 

The execution of a will in 1982, at a time 
when testatrix lacked testamentary ca- 
pacity, did not revoke a 1980 will. Trotter 
v. Trotter, 490 So. 2d 827 (Miss. 1986). 

The mental capacity required to revoke 
a will is the same as that required to make 
one. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

Same degree of mentality is necessary 
for revocation as for making. Watkins v. 
Watkins, 142 Miss. 210, 106 So. 753 
(1926). 

Burden of showing lack of capacity to 
revoke on party seeking to establish lost 
will. Watkins v. Watkins, 142 Miss. 210, 
106 So. 753 (1926). 

3. — Intent to revoke. 

In Mississippi, revocation of a duly ex- 
ecuted will is governed by a statute, and 
in order to affect the revocation of a will, it 
is essential that it be shown in some 
competent manner that the testator or 
someone for him performed one or more of 
the acts specified in the statute of "de- 
stroying, cancelling, or obliterating" the 
will and that he did so with the intention 
of revoking the will. Griffith v. Movie Star 
of Collins, Inc., 233 So. 2d 760 (Miss. 
1970). 

The intent to revoke a will is essential 
to the revocation by act of the testator. 



McCormack v. Warren, 228 Miss. 617, 89 
So. 2d 702 (1956). 

In order for an act to have the effect of 
revoking a will the intention to revoke 
must clearly and unequivocally appear, so 
that a will is not revoked by any act of 
spoliation or destruction not deliberately 
done animo revocandi, and even where 
the statutory methods for revoking a will 
are followed by the testator, his act is 
ineffectual unless his intent thereby to 
revoke or alter the will appears. 
McCormack v. Warren, 228 Miss. 617, 89 
So. 2d 702 (1956). 

4. By instrument of revocation. 

Any instrument expressly revoking a 
will must meet the requirements of Mis- 
sissippi Code § 91-5-1. Trotter v. Trotter, 
490 So. 2d 827 (Miss. 1986). 

In a proceeding to annul probate of will 
and codicil and for decree that decedent 
died intestate, the question whether the 
instrument of revocation had been exe- 
cuted in compliance with the require- 
ments of the statute was a question of fact 
to be determined according to the proof. 
Kennard v. Evans, 218 Miss. 176, 65 So. 
2d 285 (1953). 

Where instrument intended to revoke a 
codicil, which disposed of all the property 
of testatrix, was not signed in the pres- 
ence of one of the subscribing witnesses 
and the witness was not informed that the 
instrument was a revocation of the codicil 
and that signature appended to the in- 
strument was that of the testatrix, and 
the witness learned only from other wit- 
ness that testatrix had signed the instru- 
ment, the revoking instrument was not 
duly executed and attested. Kennard v. 
Evans, 218 Miss. 176, 65 So. 2d 285 
(1953). 

5. By subsequent will. 

The execution of a will in 1982, at a time 
when testatrix lacked testamentary ca- 
pacity, did not revoke a 1980 will. Trotter 
v. Trotter, 490 So. 2d 827 (Miss. 1986). 

A validly executed will with inconsis- 
tent provisions, but no express revocation 
clause, revokes an earlier will. Trotter v. 
Trotter, 490 So. 2d 827 (Miss. 1986). 

In a probate contest the court properly 
admitted testimony concerning a 1979 
will, where such testimony was probative 



59 



§ 91-5-3 



Trusts and Estates 



as to whether there was a statement of 
revocation of a 1961 will or whether there 
were inconsistent devises under the two 
wills. Deposit Guar. Nat'l Bank v. Cotten, 
420 So. 2d 242 (Miss. 1982). 

Revocation of a will by a subsequent 
instrument requires the document to be in 
writing, made and executed; execution in 
this context means signing. Therefore, a 
properly executed will that revoked a 
prior holographic will was not itself re- 
voked by the testator's re-dating of the 
holographic will without re-signing that 
will. Ramsey v. Robinson, 346 So. 2d 379 
(Miss. 1977). 

A surviving wife could by a valid, sub- 
sequent will revoke her part of a joint will 
earlier executed with her husband. Lane 
v. Woodland Hills Baptist Church, 285 So. 
2d 901 (Miss. 1973). 

Provision that testatrix's daughter and 
her son should not inherit any of the 
testatrix's property until five years after 
the death of the daughter's husband was 
revoked by implication by two subsequent 
testamentary instruments, one of which 
devised to the daughter certain Louisiana 
property without provision for the post- 
ponement of the enjoyment thereof, the 
other of which directed the management 
by trustees of the interest of the daughter 
and her son, also without making any 
provision for the postponement of the en- 
joyment thereof. Martin v. E slick, 229 
Miss. 234, 90 So. 2d 635 (1956), corrected, 
229 Miss. 261, 92 So. 2d 244 (1957). 

Where a testator made a second will 
which had no revoking provisions but 
which was inconsistent with the first will 
and where the sole devisee and legatee 
was a witness to the will and therefore 
ineligible to take under it, the property 
passed as if the deceased had died intes- 
tate. Crawford's Estate v. Crawford, 225 
Miss. 208, 82 So. 2d 823, 59 A.L.R.2d 1 
(1955). 

Revocation may be worked by inconsis- 
tent provisions of subsequent will. Wheat 
v. Lacals, 139 Miss. 300, 104 So. 73 (1925). 

6. By codicil. 

The rule that a codicil does not work a 
revocation except to the precise extent 
that it either expressly or by necessary 
implication modifies the former provisions 



in a will was applied to a separate paper 
in the testator's handwriting, signed and 
dated after the will, found in the same 
envelope as the will and referring to "my 
formal will." Klein v. Gaines, 203 Miss. 
871, 34 So. 2d 488 (1948). 

Statute pertaining to revocations of 
wills held not to prevent implied revoca- 
tion through codicil directing sum loaned 
legatee by testator to be repaid or de- 
ducted from his legacy. Holcomb v. 
Holcomb, 173 Miss. 192, 159 So. 564 
(1935). 

Codicil to will not subscribed and at- 
tested is invalid, but does not affect valid- 
ity of will. Hawkins v. Duberry, 101 Miss. 
17, 57 So. 919 (1912). 

7. By destruction or obliteration. 

A total or partial revocation of a will by 
either cancellation or obliteration is au- 
thorized by this section. Matter of 
Palmer's Will (Miss. 1978) 359 So. 2d 752 

In Mississippi, revocation of a duly ex- 
ecuted will is governed by a statute, and 
in order to affect the revocation of a will, it 
is essential that it be shown in some 
competent manner that the testator or 
someone for him performed one or more of 
the acts specified in the statute of "de- 
stroying, cancelling, or obliterating" the 
will and that he did so with the intention 
of revoking the will. Griffith v. Movie Star 
of Collins, Inc., 233 So. 2d 760 (Miss. 
1970). 

8. — Presumptive animo revocandi. 

Will presumed destroyed animo revo- 
candi, where traced to testator and not 
found after death. Watkins v. Watkins, 
142 Miss. 210, 106 So. 753 (1926). 

Presumption of destruction animo revo- 
candi is overcome by showing existence 
after permanent incapacity. Watkins v. 
Watkins, 142 Miss. 210, 106 So. 753 
(1926). 

9. — Destruction of one of multiple 

copies. 

Where a will has been executed in du- 
plicate, the destruction by testator of that 
copy which he retains in his possession, 
with intent to revoke the will, creates a 
presumption that the testator intends 
thereby to revoke the will. Phinizee v. 



60 



Wills and Testaments 



§ 91-5-3 



Alexander, 210 Miss. 196, 49 So. 2d 250 
(1950). 

Where there are two copies of a will, 
both in possession of deceased, the pre- 
sumption of law would be that by the 
preservation of one duplicate entire the 
testator did not intend a revocation of 
these particular devises, otherwise he 
would have mutilated both duplicates. 
Phinizee v. Alexander, 210 Miss. 196, 49 
So. 2d 250 (1950). 

10. — Marginal notation. 

Where credible extraneous evidence to 
the contrary is available, marginal nota- 
tions made by a testator subsequent to the 
execution of his will need not necessarily 
constitute a revocation thereof. Wiley v. 
Wiley, 184 So. 2d 854 (Miss. 1966). 

11. Implied revocation; generally. 

Mississippi Supreme Court declined to 
adopt a rule of revocation of a will by 
divorce and to adopt a rule that a pre- 
divorce will was automatically or ex- 
pressly revoked by a divorce accompanied 
by a property settlement agreement with 
provisions inconsistent with the terms of 
the pre-divorce will; on the other hand, it 
did acknowledge that there may be an 
implied revocation of a pre-divorce will in 
cases where there is a divorce accompa- 
nied by a property settlement agreement 
with provisions inconsistent with the 
terms of the pre-divorce will, but any 
document submitted by a contestant as a 
subsequent declaration pursuant to Miss. 
Code Ann. § 91-5-3 must reveal by "clear 
and unequivocal" evidence the testator's 
intention to revoke the prior will by look- 
ing to the facts and circumstances of the 
particular case, the terms of the will itself, 
the divorce decree and the property settle- 
ment, and the conduct of the parties. Hin- 
ders v. Hinders, 828 So. 2d 1235 (Miss. 
2002), aff'd, 828 So. 2d 1235 (Miss. 2002). 

Mississippi recognizes the doctrine of 
revocation of wills by statute, and also, in 
proper cases where the facts give rise to 
an implied revocation, by operation of law. 
Rasco v. Estate of Rasco, 501 So. 2d 421 
(Miss. 1987). 

The doctrine of implied revocation is 
carefully limited to execution of conflict- 
ing deeds or other instruments; state- 



ments of the testator that he intends to 
revoke the will are not enough; and, gen- 
erally, such statements are inadmissible if 
offered to show an implied revocation. 
Trotter v. Trotter, 490 So. 2d 827 (Miss. 
1986). 

Mississippi recognizes that a will may 
be impliedly revoked. Trotter v. Trotter, 
490 So. 2d 827 (Miss. 1986). 

Revocation of a will is a matter of in- 
tent, except in those instances in which it 
occurs by operation of law from a change 
in circumstances subsequent to the execu- 
tion of the will. McCormack v. Warren, 228 
Miss. 617, 89 So. 2d 702 (1956). 

Revocation of a will is a matter of intent 
except where it occurs by operation of law 
from a change in circumstances subse- 
quent to the execution of the will. 
McCormack v. Warren, 228 Miss. 617, 89 
So. 2d 702 (1956). 

The doctrine of implied revocation has 
been carefully limited in Mississippi to 
the execution of conflicting deeds and 
other instruments. In re Stoball's Will, 
211 Miss. 15, 50 So. 2d 635 (1951). 

This section [Code 1942, § 658] has no 
application to implied revocations by op- 
eration of law, but has reference alone to 
express revocations which are sought to 
be shown in the manner stated in the 
statute. Hilton v. Johnson, 194 Miss. 671, 
12 So. 2d 524 (1943). 

Statute pertaining to revocations of 
wills applies only to express revocation, 
and has no application to an implied revo- 
cation. Holcomb v. Holcomb, 173 Miss. 
192, 159 So. 564 (1935). 

Forcefully preventing testator from 
changing will held not such a change in 
conditions or circumstances as to amount 
to a revocation by implication. Minor v. 
Russell, 126 Miss. 228, 88 So. 633 (1921). 

Doctrine of implied revocation is always 
recognized in Mississippi. Caine v. Barn- 
well, 120 Miss. 209, 82 So. 65 (1919). 

This section [Code 1942, § 658] does not 
prevent implied revocation. Hoy v. Hoy, 93 
Miss. 732, 48 So. 903, 136 Am. St. R. 548, 
17 Am. Ann. Cas. 1137 (1909). 

12. — Subsequent inconsistent instru- 
ment. 

A divorce accompanied by property set- 
tlement did not revoke, by implication, a 



61 



§ 91-5-3 



Trusts and Estates 



previously executed will where the parties 
continued to live together, the divorce de- 
cree or property settlement contained no 
proof of intent to revoke the prior testa- 
mentary instrument, and there was no 
showing that the property settlement was 
anything more than a formality to comply 
with the requirements of a divorce for 
irreconcilable differences. Rasco v. Estate 
of Rasco, 501 So. 2d 421 (Miss. 1987). 

Under the provisions of Code 1942, 
§ 658 a divorce accompanied by a prop- 
erty settlement made by the husband to 
his former wife will not serve as a revoca- 
tion of a prior will providing property 
rights or legacies for the divorced spouse, 
absent proof that the testator intended 
that the settlement should operate as a 
fulfillment of support rights or as an ad- 
emption of a prior-created legacy and re- 
lease by the divorced spouse of all rights 
in the deceased's estate. McKnight v. 
McKnight, 267 So. 2d 315 (Miss. 1972). 

Execution of deed to property conveying 
it to devisee named in prior executed will 
covering same property operates as pro 
tanto revocation of will, but only to extent 
of property deeded and revokes will in no 
other particular. Dantone v. Dantone, 205 
Miss. 420, 38 So. 2d 908 (1949). 

13. Joint wills. 

A surviving wife could by a valid, sub- 
sequent will revoke her part of a joint will 
earlier executed with her husband. Lane 
v. Woodland Hills Baptist Church, 285 So. 
2d 901 (Miss. 1973). 

14. Pleading and practice. 

Burden of showing lack of capacity to 
revoke on party seeking to establish lost 
will. Watkins v. Watkins, 142 Miss. 210, 
106 So. 753 (1926). 

15. Evidence — sufficiency. 

The evidence was sufficient to rebut the 
presumption that a testator revoked a will 
which was known to have been made and 
was kept in a locked drawer of the testa- 
tor's desk, but which was not found upon 
his death, where the testator had a close 
and affectionate relationship with his 
daughter who was the sole beneficiary 
under the will, he talked to people about 
his will and told them that he was leaving 
his entire estate to his daughter, there 



was nothing in the record suggesting that 
he had changed his mind, the desk in 
which the will was kept was subject to 
entry by others, and there was evidence 
that someone had entered the house and 
the desk area after the testator died and 
emptied the contents of filing cabinet 
drawers. Berry v. Smith, 584 So. 2d 400 
(Miss. 1991). 

Where a testator's will was found in a 
lock box at his bank, to which box only he 
had access, and where the testator's sig- 
nature, but not the signatures of the wit- 
nesses, had been cut off of the bottom of 
the first two pages of the will apparently 
with scissors, but the third page with the 
signature of the testator and those of the 
witnesses, and with an attestation certif- 
icate also signed by the witnesses, was 
unmarred and intact, and in all other 
respects the will was in its original condi- 
tion, the will had not been revoked. 
Griffith v. Movie Star of Collins, Inc., 233 
So. 2d 760 (Miss. 1970). 

Although there was no direct proof that 
the testatrix had destroyed the will, proof 
that the will was in her possession when 
last seen and that it could not be found 
after her death, together with other evi- 
dence, supported finding that complain- 
ant's proof was insufficient to establish 
the existence of the alleged lost or de- 
stroyed will at the time of testatrix's 
death, or to overcome the presumption 
that the will had been destroyed by the 
testatrix during her lifetime with the in- 
tention of revoking it. James v. Barber, 
244 Miss. 234, 142 So. 2d 21 (1962). 

Although a will which had last been 
seen in testatrix' possession was not found 
after her death, evidence established that 
the testatrix did not revoke her will and 
rebutted the presumption as to revocation 
arising due to the fact that the will could 
not be found upon her death, especially 
since it appeared that the devisees under 
the will were blood relatives of the testa- 
trix, and that one, who desired to defeat 
the will, had access to the place where it 
was kept. Adams v. Davis, 233 Miss. 228, 
102 So. 2d 190 (1958). 

Under evidence that testatrix might 
have desired to revoke her will but later 
changed her mind, the chancellor did not 
err in holding that there had been no 



62 



Wills and Testaments 



§ 91-5-3 



revocation where both copies of the instru- 
ment were found in her possession at the 
time of death, and even though the origi- 
nal or ribbon copy of the instrument, 
which was found in the envelope with 
other of the testatrix' papers, was torn 
from the bottom upwards by five separate 
tears which extended to points opposite or 
above the testatrix' signature, it was 
shown that no part of the instrument was 
torn off, and the signature of the testatrix 
and subscribing witnesses were plainly 
legible, there were no interlineations, era- 
sures or cancellations on the instrument, 
and the carbon copy thereof was not torn. 
McCormack v. Warren, 228 Miss. 617, 89 
So. 2d 702 (1956). 

Will presumed destroyed animo revo- 
candi, where traced to testator and not 
found after death. Watkins v. Watkins, 
142 Miss. 210, 106 So. 753 (1926). 

16. —Parol. 

Parol testimony designed to show an 
implied revocation is not admissible. In re 
Stoball's Will, 211 Miss. 15, 50 So. 2d 635 
(1951). 

The statute by its very language ex- 
cludes parol testimony to change a will in 
any respect. Hilton v. Johnson, 194 Miss. 
671, 12 So. 2d 524 (1943). 

In a widow's contest of her husband's 
will, leaving all his property to his broth- 
ers and sisters, parol testimony of several 
witnesses, offered by the widow, that the 
husband had stated that he wanted her to 
have all of his property, was properly 
excluded as not establishing a revocation 



in the manner provided by this section 
[Code 1942, § 658]. Hilton v. Johnson, 194 
Miss. 671, 12 So. 2d 524 (1943). 

17. Equity; promise not to revoke. 

A breach of a contract not to revoke a 
will is just that a breach of contract. It is 
not grounds for contesting the will per- 
taining to the contract. Remedies, if any, 
of promissor's heirs lie on the contract or 
perhaps upon constructive trust theory. 
Trotter v. Trotter, 490 So. 2d 827 (Miss. 
1986). 

A contract not to revoke a will may 
become irrevocable, as long as the prom- 
isee performs in accordance with the con- 
tract. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

A proper rescission of a contract not to 
revoke a will does not revoke the will to 
which the contract pertains. Trotter v. 
Trotter, 490 So. 2d 827 (Miss. 1986). 

Where testator executes a will in com- 
pliance with an oral agreement with the 
devisee that the latter will render unique 
and necessary personal services to testa- 
tor involving a substantial change in the 
status and manner of living of the prom- 
isee, and such services have been per- 
formed, so that a revocation of the will 
amounts to fraud upon the devisee render- 
ing it impossible or impracticable to re- 
store devisee to prior situation, equity will 
hold such will to be irrevocable and the 
rights thereunder may be established. 
Johnston v. Tomme, 199 Miss. 337, 24 So. 
2d 730 (1946). 



RESEARCH REFERENCES 



ALR. Remarriage of woman after death 
of or divorce from former husband as 
revoking will executed during former mar- 
riage. 9A.L.R.2d510. 

Conflict of laws respecting revocation of 
will. 9 A.L.R.2d 1412. 

Destruction or cancelation of one copy of 
will executed in duplicate, as revocation of 
other copy. 17 A.L.R.2d 805. 

Divorce or annulment as affecting will 
previously executed by husband or wife. 
18 A.L.R.2d 697. 

What constitutes fraud within statute 
relating to proof of will "fraudulently" 



destroyed during testator's lifetime. 23 
A.L.R.2d 382. 

Effect of testator's attempted physical 
alteration of will after execution. 24 
A.L.R.2d 514. 

Adoption of child as revoking will. 24 
A.L.R.2d 1085. 

Wills: revocation as affected by invalid- 
ity of some or all of dispositive provisions 
of later will. 28 A.L.R.2d 526. 

Validity of oral promise or agreement 
not to revoke will. 29 A.L.R.2d 1229. 

Codicil as reviving revoked will or codi- 
cil. 33 A.L.R.2d 922. 



63 



§ 91-5-5 



Trusts and Estates 



Implied revocation of will by later will 
or codicil. 59 A.L.R.2d 11. 

Statutory revocation of will by subse- 
quent birth or adoption of child. 97 
A.L.R.2d 1044. 

Revocation of will as affecting codicil 
and vice versa. 7 A.L.R.3d 1143. 

Statute excluding testimony of one per- 
son because of death of another as applied 
to testimony in respect of lost or destroyed 
instrument. 18 A.L.R.3d 606. 

Revocation of will by nontestamentary 
writing. 22 A.L.R.3d 1346. 

Revocation of witnessed will by holo- 
graphic will or codicil, where statute re- 
quires revocation by instrument of equal 
formality as will. 49 A.L.R.3d 1223. 

Testator's failure to make new will, fol- 
lowing loss of original will by fire, theft, or 
similar casualty, as constituting revoca- 
tion of original will. 61 A.L.R.3d 958. 

Divorce or annulment as affecting will 
previously executed by husband or wife. 
71 A.L.R.3d 1297. 

Revival, under doctrine of dependant 
relative revocation, of charitable bequest 
in will expressly revoked in later will 
containing same charitable bequest. 75 
A.L.R.3d 877. 

Disposition of insurance proceeds of 
personal property specifically bequeathed 
or devised. 82 A.L.R.3d 1261. 

Marriage of testator or birth of testa- 
tor's child as revoking will previously 
made in exercise of power of appointment. 
92 A.L.R.3d 1244. 

Validity of statutes or rules providing 
that marriage or remarriage of woman 



operates as revocation of will previously 
executed by her. 99 A.L.R.3d 1020. 

Liability in damages for interference 
with expected inheritance or gift. 22 
A.L.R.4th 1229. 

Revocation of prior will by revocation 
clause in lost will or other lost instrument. 
31 A.L.R.4th 306. 

Sufficiency of evidence of nonrevocation 
of lost will not shown to have been inac- 
cessible to testator — modern cases. 70 
A.L.R.4th 323. 

Pretermitted heir statutes: what consti- 
tutes sufficient testamentary reference to, 
or evidence of contemplation of, heir to 
render statute inapplicable. 83 A.L.R.4th 
779. 

Ademption or revocation of specific de- 
vise or bequest by guardian, committee, 
conservator, or trustee of mentally or 
physically incompetent testator. 84 
A.L.R.4th 462. 

Sufficiency of evidence of nonrevocation 
of lost will where codicil survives. 84 
A.L.R.4th 531. 

Action for tortious interference with be- 
quest as precluded by will contest remedy. 
18 A.L.R.5th 211. 

Alzheimer's disease as affecting testa- 
mentary capacity. 47 A.L.R.5th 523. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 467 et 
seq. 

20 Am. Jur. Legal Forms 2d, Wills 
§§ 266:111 et seq., 266:261 et seq. (revo- 
cation, generally). 

CJS. 95 C.J.S., Wills §§ 386 et seq. 



§ 91-5-5. Children born after making of the will. 

If a testator or testatrix, having a child or children born at the time of 
making and publishing his or her last will and testament, shall, at his or her 
death, leave a child or children born after the making and publishing such last 
will and testament, the child or children so after-born, if unprovided for by 
settlement and neither provided for nor disinherited, but only pretermitted, by 
the last will and testament, shall succeed to the same portion of the father's or 
mother's estate as such child or children would have been entitled to if the 
father or mother had died intestate, towards raising which portion the 
devisees and legatees shall contribute proportionately out of the parts devised 
and bequeathed to them by the same will and testament, in the same manner 
as is provided in the case of posthumous children. 



64 



Wills and Testaments 



§ 91-5-5 



SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (16); 1857, ch. 60, art. 36; 
1871, § 2390; 1880, § 1264; 1892, § 4490; Laws, 1906, § 5080; Hemingway's 
1917, § 3368; Laws, 1930, § 3352; Laws, 1942, § 659. 

JUDICIAL DECISIONS 



1. In general. 

2. Rights of after-born children. 

1. In general. 

In interpreting a will, as affected by this 
section [Code 1942, § 659], and in an 
effort to determine the intent of the testa- 
trix, the court should take into consider- 
ation all of the terms and provisions of the 
will and the circumstances surrounding 
the testatrix at the time at which she 
executed the will. Guion v. Guion, 232 
Miss. 647, 100 So. 2d 351 (1958). 

Intent is to be determined by the words 
of the will and by circumstances sur- 
rounding the testator, including the 
events and circumstances happening after 
the execution of the will and before the 
death of the testator. Guion v. Guion, 232 
Miss. 647, 100 So. 2d 351 (1958). 

In a case involving an adopted child 
born before the execution of a will, the 
court need not reach the question whether 
this section [Code 1942, § 659] was in- 
tended to apply to adopted children born 
after the execution of a will since the 
legislature intended pretermitted chil- 
dren provisions to apply only to children 
born after the will was made. Lee v. Foley, 
224 Miss. 684, 80 So. 2d 765, 61 A.L.R.2d 
209 (1955). 

2. Rights of after-born children. 

Where a mother had two living children 
at the time she executed her will, the fact 
that she devised and bequeathed all of her 
property to her husband manifested an 
intent to disinherit her children as a class, 
so that a child born after the execution of 
the will had no inheritable rights in the 
mother's estate. Guion v. Guion, 232 Miss. 
647, 100 So. 2d 351 (1958). 

A general devise of a remainder or re- 
versionary interest to the heirs of the 



testator or to his children does not com- 
prehend a posthumous child, so as to 
prevent it from claiming under the statute 
as a child pretermitted by the will, in the 
absence of anything to show that the child 
was in the mind of the testator. Mahaffey 
v. First Nat'l Bank, 231 Miss. 798, 97 So. 
2d 756 (1957). 

Provisions of testator's will, directing 
that the residue of testator's estate should 
be distributed into four parts, with one 
part each going to his wife and then living 
children, and devising a life estate in 
certain property to testator's sister and 
brother-in-law, with reversion to the heirs 
of testator's body, did not manifest an 
intent to deprive two children born after 
the execution of the will, one posthu- 
mously, of the status of pretermitted chil- 
dren. Mahaffey v. First Nat'l Bank, 231 
Miss. 798, 97 So. 2d 756 (1957). 

Child born within 10 months after tes- 
tator's death, or after time devisees must 
be living to take under will, takes under 
will; "in esse." Scott v. Turner, 137 Miss. 
636, 102 So. 467 (1925). 

After-born children held to inherit in- 
terest in decedent's estate; devises and 
legacies held subject to proportionate con- 
tribution to make up shares of after-born 
children. Clark v. Clark, 126 Miss. 455, 89 
So. 4 (1921). 

After-born children not provided for in 
will held vested with absolute title to 
property as if parent had died intestate. 
Clark v. Clark, 126 Miss. 455, 89 So. 4 
(1921). 

Child born during testator's life, after 
making of will and not mentioned therein, 
there being other living children, became 
vested with absolute title to share in es- 
tate. Watkins v. Watkins, 88 Miss. 148, 40 
So. 1001 (1906). 



RESEARCH REFERENCES 



ALR. Adoption of child as revoking will. 
24A.L.R.2d 1085. 



Marriage of testator or birth of testa- 
tor's child as revoking will previously 



65 



§ 91-5-7 



Trusts and Estates 



made in exercise of power of appointment. 
92 A.L.R.3d 1244. 

Conflict of laws as to pretermission of 
heirs. 99 A.L.R.3d 724. 

Pretermitted heir statutes: what consti- 
tutes sufficient testamentary reference to, 
or evidence of contemplation of, heir to 
render statute inapplicable. 83 A.L.R.4th 
779. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 555 et 
seq. 



20 Am. Jur. Legal Forms 2d, Wills, 
§ 266:105 (provision of codicil as to be- 
quest to child born or adopted after exe- 
cution of will); § 266:883 (settlement of 
rights of pretermitted child). 

6 Am. Jur. Proof of Facts 2d, Intentional 
Omission of Child from Will, §§ 8 et seq. 
(proof of intentional omission of child from 
will). 

CJS. 95 C.J.S., Wills § 419. 



§ 91-5-7. Bequests not to lapse in certain cases. 

Whenever any estate of any kind shall or may be devised or bequeathed by 
the last will and testament of any testator or testatrix to any person being a 
child or descendant of such testator or testatrix, and such devisee or legatee 
shall, during the lifetime of such testator or testatrix, die testate or intestate, 
leaving a child or children, or one or more descendants of a child or children, 
who shall survive such testator or testatrix, in that case, such devise or legacy 
to such person so situated as above mentioned, and dying in the lifetime of the 
testator or testatrix, shall not lapse, but the estate so devised or bequeathed 
shall vest in such child or children, descendant or descendants, of such devisee 
or legatee in the same manner as if a legatee or devisee had survived the 
testator or testatrix and had died intestate. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (17); 1857, ch. 60, art. 37; 
1871, § 2391; 1880, § 1265; 1892, § 4491; Laws, 1906, § 5081; Hemingway's 
1917, § 3369; Laws, 1930, § 3553; Laws, 1942, § 660. 

JUDICIAL DECISIONS 



1. In general. 

Rule as to lapsed devises is applicable 
primarily to instances where devisee 
named in will predeceased testatrix. Mis- 
sissippi State Univ. Found., Inc. v. Clark, 
697 So. 2d 1154 (Miss. 1997). 

Testamentary gift to life income benefi- 
ciary of testamentary trust lapsed when 
beneficiary predeceased testatrix; how- 
ever, gift over to remaindermen did not 
lapse, as remaindermen were capable of 
taking at time of death of testatrix. Mis- 
sissippi State Univ. Found., Inc. v. Clark, 
697 So. 2d 1154 (Miss. 1997). 

In a proceeding seeking interpretation 
of a residuary clause of a will in which the 
testator left his residual estate to his 
daughter and to his brothers and sisters, 
share and share alike, several of whom 
predeceased the testator, the chancellor 
properly held that the lapsed portions of 



the testator's estate descended by the 
laws of intestate succession to his daugh- 
ter, his heir-at-law. Moffett v. Howard, 392 
So. 2d 509 (Miss. 1981). 

Where a son died intestate prior to the 
death of the testatrix and left a son and 
daughter as his surviving heirs, such sur- 
viving heirs succeeded to the share of 
their father in the estate. Martin v. Eslick, 
229 Miss. 234, 90 So. 2d 635 (1956), cor- 
rected, 229 Miss. 261, 92 So. 2d 244 
(1957). 

The rule as to lapsed devises is applica- 
ble primarily to instances where the devi- 
see named in the will had died prior to the 
death of the testator. Hays v. Cole, 221 
Miss. 459, 73 So. 2d 258 (1954). 

Under devise of residue of estate under 
will to the fiancee, two uncles and a cousin 
of testator, the share of one of the devisees 
who predeceased the testator goes to tes- 



66 



Wills and Testaments 



§ 91-5-9 



tator's heirs at law, and is not saved by 
this section [Code 1942, § 660]. Clark v. 
Case, 207 Miss. 163, 42 So. 2d 109 
(1949). 

This section [Code 1942, § 660] does not 
apply to bequests to those who are not 
descendants of the testator, and a legacy 
to a niece who predeceased the testator 
lapsed so that her son did not inherit 



through her. Kullman v. Dreyfus' Estate, 
201 Miss. 887, 30 So. 2d 81 (1947). 

Leasehold interest in school land in 
state owned by testatrix of other state is 
governed by Mississippi law; legacy lapses 
on death of legatee without children 
though statute of domicile of testatrix 
provides contrary. Neblett v. Neblett, 112 
Miss. 550, 73 So. 575 (1916). 



RESEARCH REFERENCES 



ALR. Wills: antilapse statute as appli- 
cable to devise or bequest in terms of 
distributive share, under law, in estate of 
testator. 3 A.L.R.2d 1419. 

Benefit of direction in deed or will for 
payments by grantee or devisee to third 
person as surviving latter's death, and 
passing as part of his estate. 6 A.L.R.2d 
363. 

Devise or bequest to designated individ- 
ual "or his estate," "or his children," "or his 
representatives," or the like (other than 
"or his heirs"), as subject to lapse in event 
of individual's death before that of testa- 
tor. 11 A.L.R.2d 1387. 

Rights of party to void marriage in 
respect of transfers or gifts to other in 
mistaken belief marriage was valid. 14 
A.L.R.2d 918. 

Who is "child," "issue," "descendant," 
"relation," "heir," etc., within antilapse 
statute describing the person taking 
through or from the legatee or devisee. 19 
A.L.R.2d 1159. 



Devolution of lapsed portion of residu- 
ary estate. 36 A.L.R.2d 1117. 

Applicability of anti-lapse statutes to 
class gifts. 56 A.L.R.2d 948. 

Testator's intention as defeating opera- 
tion of antilapse statute. 63 A.L.R.2d 
1172. 

Who are within terms "relation," "de- 
scendant," "child," "brother," "sister," etc., 
describing legatee or devisee, in statute 
providing against lapse upon death of leg- 
atee or devisee before testator. 63 
A.L.R.2d 1195. 

Ademption of bequest of proceeds of 
property. 45 A.L.R.3d 10. 

Anti-lapse statute as applicable to in- 
terest of beneficiary under inter vivos 
trust who predeceases life-tenant settlor. 
47 A.L.R.3d 358. 

Am Jur. 80 Am. Jur. 2d, Wills §§ 1431 
et seq. 

20 Am. Jur. Legal Forms 2d, Wills 
§§ 266:602 et seq. (lapse; gifts over). 

CJS. 97 C.J.S., Wills, §§ 1811 et seq. 



§ 91-5-9. Devise to witness void. 

If any person be a subscribing witness to a will wherein any devise or 
bequest is made to him and the will cannot otherwise be proven, such devise or 
bequest shall be void, and the witness shall be competent as to the residue of 
the will as if a devise or bequest had not been made to him, and he may be 
compelled to testify. If such witness would have been entitled to any share of 
the testator's estate in case the will were not established, then so much of such 
share shall be saved to the witness as shall not exceed the value of the devise 
or bequest made to him in the will. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (27); 1857, ch. 60, art. 45; 
1871, § 1101; 1880, § 1973; 1892, § 1826; Laws, 1906, § 2001; Hemingway's 
1917, § 1666; Laws, 1930, § 3554; Laws, 1942, § 661. 



67 



§ 91-5-11 Trusts and Estates 

JUDICIAL DECISIONS 

1. In general. as a subscribing witness, and adminis- 

Where a devisee or legatee to the will is tered the estate, he is estopped to claim 

also a witness, the devise or bequest to title to land belonging to him and devised 

him is void but the witness is competent by the will to a third party. In this case 

as to the residue of the will, so the will is this section [Code 1942, § 661] was not 

valid except as to the annulled legacy or invoked, and the husband took the be- 

devise. Crawford's Estate v. Crawford, 225 quests and devises under the will. West v. 

Miss. 208, 82 So. 2d 823, 59 A.L.R.2d 1 West, 131 Miss. 880, 95 So. 739, 29 A.L.R. 

(1955). 226 (1923). 

Devise to witness is void, but witness is Words "otherwise to be proved" in this 

competent to establish residue of the will. section [Code 1942 § 661] refer to execu _ 

Swanzy v. Kolb 94 Miss. 10, 46 1 So 549 ti and t f f contents of will 

n ^r St - f *?'****?' T /% of, Swanz ^ v - Kolb 94 Miss - 10 > 46 So - 549 > 

il 908) ono a ^o o d S o? ooo V " ^Tf ^^ 2 ? 136 Am. St. R. 568, 18 Am. Ann. Cas. 1089 



Miss. 208, 82 So. 2d 823, 59 A.L.R.2d 1 
(1955). 

Where a husband qualified as executor 
under the will of his wife, proved the will 



(1908). 



RESEARCH REFERENCES 

ALR. Amount or value of testamentary witness, saving the share witness would 

gift as affecting application of statute in- take in absence of will. 95 A.L.R.2d 1256. 

validating will attested by beneficially in- Am Jur. 79 Am. Jur. 2d, Wills §§ 275 et 

terested witness or limiting benefit to se q., 289 et seq. 

such witness. 73 A.L.R.2d 1230. CJS. 95 C.J.S., Wills §§ 88-92, 260-274. 

Exception or proviso in statute invali- 
dating testamentary gift to subscribing 

§ 91-5-11. Devise or bequest to trustee. 

(1) A devise or bequest in a will duly executed pursuant to the provisions 
of Section 91-5-1 of Mississippi Code of 1972 may be made to the trustee of a 
trust which is evidenced by a written instrument in existence when the will is 
made and which is identified in the will. Such devise or bequest shall not be 
invalid because the trust is amendable or revocable, or both, by the settlor or 
any other person or persons; nor because the trust instrument or any 
amendment thereto was not executed in the manner required for wills; nor 
because the trust was amended after execution of the will. Unless the will 
provides otherwise, such devise or bequest shall operate to dispose of the 
property under the terms and provisions of the instrument creating the trust, 
including any amendments or modifications in writing made at any time before 
or after the making of the will and before the death of the testator, and the 
property shall not be deemed held under a testamentary trust. An entire 
revocation of the trust prior to the testator's death shall invalidate the devise 
or bequest. 

(2) The provisions of this section shall apply to all devises or bequests 
made in any will duly executed according to said section of any testator dying 
after May 6, 1958, whether the will is executed before or after that date. 

68 



Wills and Testaments § 91-5-15 

(3) The term "will" in this section shall include and refer to the term 
"codicil". 

SOURCES: Codes, 1942, § 661.5; Laws, 1958, ch. 240, §§ 1-3, eff. upon passage 
(approved May 6, 1958). 

Cross References — Definition of term "will," see § 1-3-59. 

Comparable Laws from other States — Georgia Code Annotated, §§ 53-12-70 
through 53-12-74. 
Tennessee Code Annotated, § 32-3-106. 
Texas Probate Code Annotated, § 58a. 

RESEARCH REFERENCES 

ALR. Effect of impossibility of perfor- 
mance of condition precedent to testamen- 
tary gift. 40 A.L.R.4th 193. 

§ 91-5-13. Creditor competent witness to will. 

Any creditor shall be a competent subscribing witness to a last will and 
testament; but any special provision in favor of such creditor in the will, either 
by admitting the debt or by providing for its payment or by giving it a 
preference, shall be void, and such claim shall stand as though the provision 
had not been made. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (44); 1857, ch. 60, art. 46; 
1871, § 1102; 1880, § 1974; 1892, § 1827; Laws, 1906, § 2002; Hemingway's 
1917, § 1667; Laws, 1930, § 3555; Laws, 1942, § 662. 



§ 91-5-15. Nuncupative wills. 

A nuncupative will shall not be established unless it be made in the time 
of the last sickness of the deceased at his or her habitation or where he or she 
hath resided for ten days next preceding the time of his or her death, except 
when such person is taken sick from home and die before his or her return to 
such habitation, nor where the value bequeathed exceeds one hundred dollars 
unless it be proved by two witnesses that the testator or testatrix called on 
some person present to take notice or bear testimony that such is his or her 
will, or words to that effect. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 38; 
1871, § 2392; 1880, § 1266; 1892, § 4492; Laws, 1906, § 5082; Hemingway's 
1917, § 3370; Laws, 1930, § 3556; Laws, 1942, § 663. 

Cross References — Revocation of anatomical gifts during terminal illness, see 
§ 41-39-41. 



§ 91-5-17 



Trusts and Estates 



JUDICIAL DECISIONS 



1. In general. 

2. Devise of lands. 

3. Foreign nuncupative wills. 

1. In general. 

Biological father entitled to inherit from 
illegitimate child is entitled to share in 
recovery in wrongful death action. 
Burdette v. Crump, 472 So. 2d 959 (Miss. 
1985). 

"Last sickness," as used in statute per- 
mitting nuncupative wills under certain 
conditions, means that at time of making 
will testator is in extremis, at least so 
near death that he did not have reason- 
able time and opportunity to make writ- 
ten will. Schmitz v. Summers, 179 Miss. 
260, 174 So. 569 (1937). 

Where testator made nuncupative will 
while sick with illness of which he died, 
but neither testator nor his physician con- 
sidered his condition mortally serious, 
will was invalid under statute requiring 
nuncupative wills to be made "in the time 
of last sickness." Schmitz v. Summers, 179 
Miss. 260, 174 So. 569 (1937). 

Nuncupative will is testamentary decla- 
ration, not in writing, made before suffi- 



cient number of witnesses when testator 
is in extremis. Lee v. Barrow, 156 Miss. 
711, 126 So. 648 (1930). 

Nuncupative will requires intent of tes- 
tator that declaration then made consti- 
tute his will without being embodied in 
written instrument. Lee v. Barrow, 156 
Miss. 711, 126 So. 648 (1930). 

Instrument dictated in form of letter to 
executor was simply defectively executed 
written will and not subject to probate as 
nuncupative will. Lee v. Barrow, 156 Miss. 
711, 126 So. 648 (1930). 

The witnesses are not required to prove 
the presence of each other. Burch v. Sto- 
vall, 27 Miss. 725 (1854). 

2. Devise of lands. 

Lands do not pass under a nuncupative 
will. Sadler v. Sadler, 60 Miss. 251 (1882). 

3. Foreign nuncupative wills. 

The removal and change of citizenship 
from Louisiana to this state of a person 
who has executed a nuncupative will in 
that state according to its laws does not 
revoke the will. Pratt v. Hargraves, 77 
Miss. 892, 28 So. 722, 78 Am. St. R. 551 
(1900). 



RESEARCH REFERENCES 



ALR. What amounts to "last sickness" 
or the like within requirement that nun- 
cupative will be made during last sick- 
ness. 8 A.L.R.3d 952. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 640 et 
seq. 

20 Am. Jur. Legal Forms 2d, Wills, 
§ 266:83 (nuncupative will: affidavit by 



witness who reduced testamentary words 
to writing). 

CJS. 95 C.J.S., Wills §§ 328 et seq. 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-5-17. Parties in interest to nuncupative will to be cited. 

The probate of any nuncupative will shall not be taken, or letters 
testamentary granted thereon, until after the expiration of fourteen days from 
the time of the decease of the testator or testatrix, nor until the widow, if any, 
and next of kin, if resident in this state, have been summoned to contest the 
same if they think proper. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 40; 
1871, § 2394; 1880, § 1268; 1892, § 4494; Laws, 1906, § 5084; Hemingway's 
1917, § 3372; Laws, 1930, § 3557; Laws, 1942, § 664. 



70 



Wills and Testaments § 91-5-21 

RESEARCH REFERENCES 

Law Reviews. Symposium on Missis- risdiction and Venue — Rules 16, 81 and 
sippi Rules of Civil Procedure: Pretrial 82. 52 Miss. L. J. 105, March, 1982. 
Procedure, Applicability of Rules, and Ju- 

§ 91-5-19. Nuncupative will not to be proven after six months 
unless reduced to writing. 

After six months have elapsed from the time of speaking the alleged 
testamentary words, testimony shall not be received to probate a nuncupative 
will unless the words, or the substance thereof, shall have been reduced to 
writing within six days after speaking the same. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 39; 
1871, § 2393; 1880, § 1267; 1892, § 4493; Laws, 1906, § 5083; Hemingway's 
1917, § 3371; Laws, 1930, § 3558; Laws, 1942, § 665. 

JUDICIAL DECISIONS 

1. In general. the will on an issue devisavit vel non 

The word "prove," (Code 1871, § 2393) would not be rejected. George v. Greer, 53 

had reference to probate; but, if probated Miss. 495 (1876). 
within six months, testimony to establish 

RESEARCH REFERENCES 

Law Reviews. Symposium on Missis- risdiction and Venue — Rules 16, 81 and 
sippi Rules of Civil Procedure: Pretrial 82. 52 Miss. L. J. 105, March, 1982. 
Procedure, Applicability of Rules, and Ju- 

§ 91-5-21. Members of armed forces and mariners at sea ex- 
cepted. 

Any person of sound mind eighteen years of age or older and being in the 
armed forces of the United States of America, in active service at home or 
abroad or being a mariner at sea, may devise, dispose of, and bequeath his 
goods and chattels or property, real and personal, anything in this chapter to 
the contrary notwithstanding. 

Any will executed prior to July 23, 1968, which conforms to the require- 
ments of this section shall be valid; provided, however, that the testator of said 
will must be alive at said date. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (21); 1857, ch. 60, art. 41; 
1871, § 2395; 1880, § 1269; 1892, § 4495; Laws, 1906, § 5085; Hemingway's 
1917, § 3373; Laws, 1930, § 3559; Laws, 1942, § 666; Laws, 1968, ch. 307, §§ 1, 
2, eff from and after passage (approved July 23, 1968). 

RESEARCH REFERENCES 

Am Jur. 79 Am. Jur. 2d, Wills §§ 647 et CJS. 95 C.J.S., Wills §§ 340, 341. 
seq. 

71 



§ 91-5-23 Trusts and Estates 

§ 91-5-23. Provision for husband or wife to be in bar. 

Any provision by the will of the husband or wife for the other shall be 
construed to be in bar of any share of the real or personal estate of the testator, 
unless it be otherwise expressed in the will. 

SOURCES: Codes, 1880, § 1174; 1892, § 4498; Laws, 1906, § 5088; Hemingway's 
1917, § 3376; Laws, 1930, § 3560; Laws, 1942, § 667. 

Cross References — Descent of property between husband and wife, see § 91-1-7. 

JUDICIAL DECISIONS 

1. In general. she may not without renouncing the will 

Widow of testator dying without chil- take the legacy and the year's provisions 

dren inherits all undisposed of property, and other exemptions. McGaughey v. 

including lapsed devises; widow of testa- Eades, 78 Miss. 853, 29 So. 516 (1901). 
tor dying without children not precluded The remedy of the husband or wife who 

from inheriting undisposed property be- i s dissatisfied with the provision made for 

cause she takes life estate under the will, him or her in the will of the other is to 

Marx v. Hale, 131 Miss. 290, 95 So. 441 renounce such provision and claim a dis- 

(1923). tributive share of the estate, whether it 

Where the widow gets nothing by the inc i udes the homestead or other property, 

will or where the devise to her is unsatis- as provide d by Code 1942, § 668; or if no 

factory and she renounces the will she such provision is made in the will, to claim 

takes a child s part, but where she takes a such distributive shar e under Code 1942, 

legacy under the will and the will is §§ 66?? 669? without renunciation . K elly 

expressly made in lieu of the allowance of y Mred 65 Migs 495 4 go 551 (188g) 
one year s provisions and all exemptions, 

RESEARCH REFERENCES 

ALR. Priority of surviving spouse who postnuptial agreement or property settle- 
accepts provision of will in lieu of dower or ment. 53 A.L.R.2d 475. 
other marital rights over other legatees Surviving spouse's right to marital 
and devisees and creditors. 2 A.L.R.2d share as affected by valid contract to con- 
607. vey by will. 85 A.L.R.4th 418. 

Spouse's right to take under other 
spouse's will as affected by antenuptial or 

§ 91-5-25. Right of spouse to renounce will; form of renunci- 
ation; right to intestate share. 

When a husband makes his last will and testament and does not make 
satisfactory provision therein for his wife, she may, at any time within ninety 
(90) days after the probate of the will, file in the office where probated a 
renunciation to the following effect, viz.: "I, A B, the widow of C D, hereby 
renounce the provision made for me by the will of my deceased husband, and 
elect to take in lieu thereof my legal share of his estate." Thereupon she shall 
be entitled to such part of his estate, real and personal, as she would have been 
entitled to if he had died intestate, except that, even if the husband left no child 
nor descendant of such, the widow, upon renouncing, shall be entitled to only 

72 



Wills and Testaments 



§ 91-5-25 



one-half (Vfe) of the real and personal estate of her deceased husband. The 
husband may renounce the will of his deceased wife under the same circum- 
stances, in the same time and manner, and with the same effect upon his right 
to share in her estate as herein provided for the widow. 

SOURCES: Codes, 1871, § 1282; 1880, § 1172; 1892, § 4496; Laws, 1906, § 5086; 
Hemingway's 1917, § 3374; Laws, 1930, § 3561; Laws, 1942, § 668; Laws, 
1975, ch. 373, § 1, eff from and after January 1, 1976. 

JUDICIAL DECISIONS 



1. In general. 

2. Construction. 

3. Who may take or renounce. 

4. — Common law spouse. 

5. Time within which to renounce. 

6. Right as personal. 

7. Renunciation for person non compos 

mentis. 

8. Effect on right to contest will. 

9. Effect on executorship. 

10. Testator having foreign domicil. 

11. Contract to make or renounce will. 

12. Valuation, calculation. 

13. Effect on trusts, insurance proceeds. 

14. Effect on debts. 

15. Application in particular cases. 

16. Effect, tax deductions. 

1. In general. 

Where a husband can properly re- 
nounce his wife's will, and there are no 
children, he is entitled to one half of the 
estate of his deceased wife; however, the 
right of a husband to renounce is qualified 
by Code 1942, § 670, which expressly ap- 
plies to husband renouncing the will of his 
wife. Myers v. Laird, 230 Miss. 675, 93 So. 
2d 828 (1957). 

The effect of renunciation is to make the 
deceased spouse an intestate as to one- 
half of the willed property, leaving the will 
to stand as to the other half, so that the 
deductions provided in Code 1942, § 670, 
on account of the separate estate of the 
surviving spouse are to be taken out of the 
half of the total estate to which the sur- 
viving spouse is limited by this section. 
[Code 1942, § 668]. Davis v. Miller, 202 
Miss. 880, 32 So. 2d 871 (1947). 

2. Construction. 

Code 1942, §§ 470 and 668, must be 
construed together. Callicott & Norfleet v. 
Callicott, 90 Miss. 221, 43 So. 616 (1907). 



A failure to renounce within the statu- 
tory time amounts to an election to take 
under the will. Collins v. Melton, 40 Miss. 
242 (1866). 

3. Who may take or renounce. 

A wife justified in living separate and 
apart from her husband at the time of his 
death, there being no children, was enti- 
tled to renounce his will and take one-half 
of his estate, less the value of her own 
separate property. Stringer v. Arrington, 
202 Miss. 798, 32 So. 2d 879 (1947). 

4. — Common law spouse. 

In a proceeding to renounce will and to 
obtain a year's support from the estate on 
ground that plaintiff had been testator's 
common law wife, the will which did not 
refer to the plaintiff as wife, but left her 
an annuity as long as she was unmarried, 
could be taken into consideration. Martin 
v. Martin's Estate, 217 Miss. 173, 63 So. 
2d 827 (1953). 

In a proceeding to renounce will and to 
obtain a year's support from the estate on 
ground that plaintiff had been testator's 
common law wife, income returns for 
years during which plaintiff claimed to 
have been testator's common law wife in 
which plaintiff reported herself as single 
person constituted competent evidence 
since they were declarations against in- 
terest. Martin v. Martin's Estate, 217 
Miss. 173, 63 So. 2d 827 (1953). 

In a proceeding to renounce will and to 
obtain a year's support from the estate on 
ground that plaintiff had been testator's 
common law wife, income tax reports for a 
period which plaintiff claimed to be com- 
mon law wife, filed by the plaintiff as a 
single person did not constitute a waiver 
of plaintiff's disqualification as witness 
under the Deadman's Statute. Martin v. 



73 



§ 91-5-25 



Trusts and Estates 



Martin's Estate, 217 Miss. 173, 63 So. 2d 
827 (1953). 

5. Time within which to renounce. 

Widow may renounce at any time 
within 6 months after probate; widow and 
not court determines what is "satisfactory 
provision." Simpson v. Simpson, 120 Miss. 
197, 82 So. 3 (1919). 

Spouse's right to renounce will under 
statute was personal and abated at her 
demise; therefore, such right may not be 
undertaken by personal representative af- 
ter death of spouse, even where death 
occurs prior to expiration of statutory pe- 
riod for election. Shattuck v. Estate of 
Tyson, 508 So. 2d 1077 (Miss. 1987). 

A widow's renunciation of her husband's 
will, which renunciation was made before 
the will was admitted to probate, was 
nevertheless effective and valid, despite 
the provision in § 91-5-25 stating that 
renunciation may be made at any time 
within 90 days after the probate of the 
will. Gettis v. McAllister, 411 So. 2d 770 
(Miss. 1982). 

6. Right as personal. 

Spouse's right to renounce will under 
statute was personal and abated at her 
demise; therefore, such right may not be 
undertaken by personal representative af- 
ter death of spouse, even where death 
occurs prior to expiration of statutory pe- 
riod for election. Shattuck v. Estate of 
Tyson, 508 So. 2d 1077 (Miss. 1987). 

Where a wife in her will failed to make 
any provision for her surviving husband, 
and the husband's property was not equal 
to his lawful portion of the wife's estate, 
the right of the husband to renounce the 
will and to take his legal share of the 
wife's estate vested as a matter of law and 
became part of his estate upon his death, 
exercisable by the executor of the hus- 
band's estate, even though before his 
death, 3 weeks following his wife's death, 
the husband did not renounce the wife's 
will or take any affirmative action with 
reference thereto. McBride v. Haynes, 247 
So. 2d 129 (Miss. 1971). 

The personal representative of a de- 
ceased spouse does not have the right to 
renounce the will of a predeceased spouse 
under this section [Code 1942, § 668], for 
the privilege is one which must be invoked 



personally by the surviving spouse during 
her lifetime. Jenkins v. Borodofsky, 211 
So. 2d 874 (Miss. 1968). 

Equitable estoppel does not and cannot 
authorize the exercise of a personal right 
which terminates with the death of a 
spouse, and the fact that a husband shot 
and killed his wife, an act which would 
have precluded his inheriting her estate, 
is no justification for permitting the de- 
ceased wife's personal representatives to 
renounce the husband's will, an act which 
by law can only be invoked personally by a 
surviving spouse. Jenkins v. Borodofsky, 
211 So. 2d 874 (Miss. 1968). 

The right to renounce a will conferred 
by this statute upon a surviving spouse 
may not be exercised by his or her admin- 
istrator. Mullins' Estate v. Mullins' Estate, 
239 Miss. 751, 125 So. 2d 93, 83 A.L.R.2d 
1073 (1960). 

7. Renunciation for person non com- 
pos mentis. 

Where a widow has been mentally in- 
competent continuously from the death of 
the testator and has no guardian acting in 
her behalf during the statutory period for 
renunciation, its lapse is no bar to a sub- 
sequent election in her behalf by the 
court, or guardian acting under supervi- 
sion and approval of the court; for the 
general rule is that where an election is 
required by statute to be made within a 
certain period of time, the incompetency of 
the person entitled to elect is considered 
as warranting an extension of the statu- 
tory period. Wolcott v. Wolcott, 184 So. 2d 
381 (Miss. 1966). 

The general savings statute in favor of 
those under disabilities insofar as limita- 
tions of actions are concerned does not 
apply to the statute giving a widow the 
right to renounce her husband's will un- 
der certain circumstances. Wolcott v. 
Wolcott, 184 So. 2d 381 (Miss. 1966). 

The right to renounce a will conferred 
by this statute upon a surviving spouse 
may be exercised by a guardian in case of 
such spouse's incompetency. Mullins' Es- 
tate v. Mullins' Estate, 239 Miss. 751, 125 
So. 2d 93, 83 A.L.R.2d 1073 (1960). 

Guardian, with approval of chancery 
court, may renounce for widow non com- 
pos mentis. Hardy v. Richards, 98 Miss. 
625, 54 So. 76 (1911). 



74 



Wills and Testaments 



§ 91-5-25 



8. Effect on right to contest will. 

Renouncement by a widow of her hus- 
band's will does not constitute an aban- 
donment of her action to contest the will, 
since renouncement does not affect the 
validity of the will but merely affects the 
amount of property which the parties re- 
ceive, and, therefore, renouncement does 
not constitute an estoppel to contest the 
will. Edwards v. Edwards, 193 Miss. 889, 
11 So. 2d 450 (1943). 

Where a widow contesting the will of 
her husband renounced within the time 
prescribed, there was no inconsistency be- 
tween such renunciation and the will con- 
test so as to preclude her appeal from an 
adverse decision in the will contest, since 
both by the renunciation and the contest, 
if successful, she takes by inheritance; 
and renunciation is not an abandonment 
of the contest since renouncement does 
not affect the validity of the will but 
merely affects the amount of property 
which the parties receive. Edwards v. 
Edwards, 193 Miss. 889, 11 So. 2d 450 
(1943). 

Renunciation by a widow of her hus- 
band's will within the time prescribed and 
pending an appeal from a judgment 
against her in a contest of the will, did not 
preclude her from prosecuting her appeal 
in the will contest irrespective of any 
inconsistency between renunciation and 
the prosecution of the appeal. Edwards v. 
Edwards, 193 Miss. 889, 11 So. 2d 450 
(1943). 

9. Effect on executorship. 

Husband must renounce wife's will and 
refuse qualification as executor if he 
would keep on property devised thereun- 
der. West v. West, 131 Miss. 880, 95 So. 
739, 29A.L.R. 226(1923). 

10. Testator having foreign domicil. 

Husband may renounce wife's will and 
take child's share, although domicil of 
testatrix in foreign state. Bolton v. Bar- 
nett, 131 Miss. 802, 95 So. 721 (1923). 

Right of husband to renounce will of 
wife and take child's part governed by law 
of state, and not by law of wife's domicil; 
husband renouncing will of wife, who also 
leaves children, may take child's part in 
both real and personal property. Bolton v. 
Barnett, 131 Miss. 802, 95 So. 721 (1923). 



11. Contract to make or renounce 

will. 

Although proper contracts not to re- 
nounce a will are enforceable even though 
Code 1972 § 91-5-25 provides that a hus- 
band or wife may renounce the will of 
another, the wife's agreement not to re- 
nounce her will constituted an unconscio- 
nable contract so as to permit the wife's 
renunciation of her husband's will, not- 
withstanding her prior agreement not to 
renounce, where the wife was taken by 
her husband directly from her job to the 
office of the husband's attorney and per- 
suaded to assign the contract without 
prior knowledge of its existence or the 
opportunity to read the entire contract, 
and where the provision in the will, giving 
the wife a life estate in the parties' home- 
stead as long as she continued to live on 
the property, was minimal consideration 
when viewed against her rights under the 
laws of descent and distribution including 
her statutory right to a life estate in the 
homestead under Code 1972 § 91-1-23 
irrespective of her living on the property. 
Johnson v. Robinson, 351 So. 2d 1339 
(Miss. 1977). 

Release of a right to renounce wife's will 
by the husband constituted sufficient con- 
sideration for a contract by the wife to will 
to the husband or his issue one third of 
her estate, so that the wife could not, by 
revoking the will executed pursuant to the 
contract, defeat the rights of the prede- 
ceased husband's issue. In re Sadler's Es- 
tate, 232 Miss. 349, 98 So. 2d 863 (1957). 

Husband's will giving property to one 
who provided for him pursuant to contract 
was an obligation of the contract, not an 
abrogation of the contract which would 
enable widow to renounce will. Price v. 
Craig, 164 Miss. 42, 143 So. 694 (1932). 

12. Valuation, calculation. 

The value of real property in Louisiana 
would not be included in the value of an 
estate for the purpose of determining the 
lawful portion of the surviving husband of 
the testatrix, when he renounced the will 
in Mississippi, by the testatrix' real and 
personal estate in Mississippi. Banks v. 
Junk, 264 So. 2d 387, 69 A.L.R.3d 1070 
(Miss. 1972). 

In a proceeding to determine whether 
surviving husband's separate estate was 



75 



§ 91-5-25 



Trusts and Estates 



equal in value to one half portion of his 
deceased wife's estate, the chancellor 
properly found that the husband had not 
conveyed his one half interest in certain 
Louisiana property to his children prior to 
wife's death, but had given the property to 
his children by an act of donation after the 
event; thus, the value of the husband's one 
half interest in the Louisiana property, 
less one half of the outstanding mortgage 
loan, should have been included in the 
valuation of his separate estate along with 
the value of his personal property, and he 
was precluded by Code 1942, § 670, from 
renouncing his wife's will, which made no 
provision for him, since his property at the 
time of her death was more than equal in 
value to what would have been his lawful 
portion of her estate. Myers v. Laird, 230 
Miss. 675, 93 So. 2d 828 (1957). 

Where testatrix had willed an estate of 
the value of $90,000, and surviving hus- 
band had a separate estate worth $30,000, 
upon renunciation the surviving husband 
was entitled only to have the value of his 
separate estate deducted from one-half of 
the value of testatrix's estate, leaving the 
sum of $15,000 as a deficiency to be made 
up for the surviving husband. Davis v. 
Miller, 202 Miss. 880, 32 So. 2d 871 
(1947). 

13. Effect on trusts, insurance pro- 
ceeds. 

Where will gave widow one-half interest 
in testator's entire estate except proceeds 
of an insurance policy, which were di- 
rected to be used to pay certain legacies 
and to set up a trust for testator's adopted 
son, widow on renunciation was entitled 
to one-half the personal estate to the ex- 
tent of impairing the trust if net personal 
estate was insufficient. Campbell v. 
Cason, 206 Miss. 420, 40 So. 2d 258 
(1949). 

Where a widow renounced will leaving 
her one-half of testator's entire estate 
except proceeds of insurance policy which 
were to be used to pay bills of testator's 
aged father not to exceed $500 and to 
provide small monthly payments for such 
father's living expenses, with residue to be 
used in trust for adopted son, and per- 
sonal estate of testator was substantial, 
award to widow would not be postponed 
pending ascertainment of liabilities with 



respect to insurance proceeds, since such 
contingent liabilities were inconsequen- 
tial in comparison with the net personal 
estate of the testator. Campbell v. Cason, 
206 Miss. 420, 40 So. 2d 258 (1949). 

Where widow renounced will, leaving 
her undivided one-half interest in the en- 
tire estate excluding proceeds of an insur- 
ance policy, and contained a similar pro- 
vision for testator's adopted son together 
with a trust in favor of such son with 
respect to the insurance proceeds, the son 
took under the will and not as an heir. 
Campbell v. Cason, 206 Miss. 420, 40 So. 
2d 258 (1949). 

14. Effect on debts. 

Widow accepting devise made subject to 
payment of debts must pay them though 
she might have renounced. Rainey v. Rai- 
ney, 124 Miss. 780, 87 So. 128 (1921). 

The estate does not on the widow's elec- 
tion to take against the will become intes- 
tate as to the widow's share so as to 
incumber that share primarily with the 
debts of the estate, but she is entitled to 
the same proportion of the estate which 
she would have taken had her husband 
died intestate, after the payment of the 
debts from the whole estate. Gordon v. 
James, 86 Miss. 719, 39 So. 18 (1905). 

15. Application in particular cases. 

The right of a widow to renounce her 
husband's will could not be exercised by 
the co-conservators of her estate where no 
evidence was presented to the court dem- 
onstrating that the widow was non com- 
pos mentis, and court approval for the 
co-conservators to file on her behalf was 
neither requested nor given. Greer v. 
State, 755 So. 2d 511 (Miss. Ct. App. 
1999). 

A trial court erred in considering a wid- 
ow's homestead right as part of her sepa- 
rate estate for purposes of determining 
and reducing the value of her statutory 
share of the net assets of the estate result- 
ing from her election against her hus- 
band's will since her homestead right was 
not property owned by her at the time of 
her husband's death, but accrued to her as 
the result of her husband's death and the 
renunciation of his will. Holloway v. 
Holloway, 631 So. 2d 127 (Miss. 1993). 



76 



Wills and Testaments 



§ 91-5-25 



Widow who had entered into a property 
settlement agreement with husband may 
not elect to take against his will unless 
her estate is less than one half of her 
deceased husband's estate. Best's Will v. 
Brewer, 236 Miss. 359, 111 So. 2d 262 
(1959). 

Under Code 1942, § 668, together with 
Code 1942, § 670, the widow is entitled to 
one-half of testator's net estate, where he 
died leaving widow and adopted son as 
only heirs of law. Campbell v. Cason, 206 
Miss. 420, 40 So. 2d 258 (1949). 

Upon a widow's renunciation of a testa- 
tor's will devising to her a life estate in his 
home with remainder to a daughter, the 
widow became entitled to a one-third in- 
terest to the property in fee, and the 
daughter to the other two-thirds interest 
therein, subject to the right of the widow 
to occupy and use it during her widow- 
hood. Milton v. Milton, 193 Miss. 563, 10 
So. 2d 175 (1942). 

Where a testator directed that monthly 
payments of $200 be made to his wife so 
long as she remained his widow, and that, 
"in the event of the death or remarriage of 
my wife, and $200 monthly payments 
shall cease, then" the sum of $75 per 
month should be paid to a daughter and to 
a stepdaughter, the use of the words "and 
$200 monthly payments shall cease" be- 
tween the words "wife" and "then" demon- 
strated that he meant that the payment to 
the daughters should begin on the cessa- 
tion for any reason of the monthly pay- 
ments bequeathed to the widow, and, 
upon renunciation of the will by the 
widow, the bequests of monthly payments 
to the daughters became at once effective, 
regardless of the fact that the widow was 
still living and had not remarried. Milton 
v. Milton, 193 Miss. 563, 10 So. 2d 175 
(1942). 

Provision that on renunciation husband 
shall be entitled to one-half of wife's estate 
does not limit his rights as heir to prop- 



erty not devised. Cain v. Barnwell, 124 
Miss. 860, 87 So. 484 (1921). 

Widow with one child upon renouncing 
took child's part. Williams v. Williams, 111 
Miss. 129, 71 So. 300 (1916). 

Upon renunciation one-half of land not 
going to widow descended as intestate 
property, and did not go to residuary lega- 
tees. Gordan v. Perry, 98 Miss. 893, 54 So. 
445 (1911). 

Upon renouncing will widow became 
tenant in common with residuary legatees 
and devisees, and with them entitled to 
sue for partition. Laughlin v. O'Reily, 92 
Miss. 121, 45 So. 193 (1908). 

Where 3 of 6 children of testator re- 
ceived advancements extinguishing their 
rights in estate, widow by renouncing be- 
came entitled to one-fourth interest. 
Callicott & Norfleet v. Callicott, 90 Miss. 
221, 43 So. 616 (1907). 

The estate does not on the widow's elec- 
tion to take against the will become intes- 
tate as to the widow's share so as to 
incumber that share primarily with the 
debts of the estate, but she is entitled to 
the same proportion of the estate which 
she would have taken had her husband 
died intestate, after the payment of the 
debts from the whole estate. Gordon v. 
James, 86 Miss. 719, 39 So. 18 (1905). 

Where a widow has elected under this 
section [Code 1942, § 668] to take against 
her husband's will she becomes a co-ten- 
ant with the devisee in each and every 
parcel of real estate specifically devised by 
her deceased husband, and is not made a 
creditor of the estate by Code 1906, 
§ 5089 (Code 1942, § 670). Gordon v. 
James, 86 Miss. 719, 39 So. 18 (1905). 

16. Effect, tax deductions. 

The estate tax marital deduction avail- 
able under 26 USCS § 2056 is not limited 
to the amount of property the taxpayer 
could receive by renouncing the will under 
state law. Waldrup v. United States, 499 F. 
Supp. 820 (N.D. Miss. 1980). 



RESEARCH REFERENCES 



ALR. Waiver or abandonment of, or 
estoppel to assert, prior renunciation of, 
or election to take against, spouse's will. 
29 A.L.R.2d 227. 



What passes under provision of will 
that spouse shall take share of estate 
allowed or provided by law, or a provision 
of similar import. 36 A.L.R.2d 147. 



77 



91-5-27 



Trusts and Estates 



Who must bear loss occasioned by elec- 
tion against will. 36 A.L.R.2d 291. 

Revocation or withdrawal of election to 
take under or against will. 71 A.L.R.2d 
942. 

Election by spouse to take under or 
against will as exercisable by agent or 
personal representative. 83 A.L.R.2d 
1077. 

What constitutes or establishes benefi- 
ciary's acceptance or renunciation of de- 
vise or bequest. 93 A.L.R.2d 8. 

Factors considered in making election 
for incompetent to take under or against 
will. 3 A.L.R.3d 6. 

Time within which election must be 
made for incompetent to take under or 
against will. 3 A.L.R.3d 119. 

Who may make election for incompetent 
to take under or against will. 21 A.L.R.3d 
320. 

Extension of time within which spouse 
may elect to accept or renounce will. 59 
A.L.R.3d 767. 

Acceptance of benefits under will as 
election precluding enforcement of con- 
tract right as to property bequeathed. 60 
A.L.R.3d 1147. 

Surviving spouse taking elective share 
as chargeable with estate or inheritance 
tax. 67 A.L.R.3d 199. 

Conflict of laws regarding election for or 
against will, and effect in one jurisdiction 
of election in another. 69 A.L.R.3d 1081. 

Liability for administration expenses of 



spouse electing against will. 89 A.L.R.3d 
315. 

Extent of rights of surviving spouse who 
elects to take against will in profits of or 
increase in value of estate accruing after 
testator's death. 7 A.L.R.4th 989. 

Construction, application, and effect of 
statutes which deny or qualify surviving 
spouse's right to elect against deceased 
spouse's will. 48 A.L.R.4th 972. 

Determination of, and charges against, 
"augmented estate" upon which share of 
spouse electing to take against will is 
determined under Uniform Probate Code 
sec. 2-202. 63 A.L.R.4th 1173. 

Surviving spouse's right to marital 
share as affected by valid contract to con- 
vey by will. 85 A.L.R.4th 418. 

Am Jur. 31 Am. Jur. 2d (Rev), Execu- 
tors and Administrators §§ 677-681. 

80 Am. Jur. 2d, Wills §§ 1369 et seq. 

25 Am. Jur. PI & Pr Forms (Rev), Wills, 
Forms 161 et seq. (election whether to 
take under will). 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 344 et seq. 

Law Reviews. 1979 Mississippi Su- 
preme Court Review: Miscellaneous. 50 
Miss. L. J. 833, December, 1979. 

Symposium on Mississippi Rules of 
Civil Procedure: Pretrial Procedure, Ap- 
plicability of Rules, and Jurisdiction and 
Venue — Rules 16, 81 and 82. 52 Miss. L. 
J. 105, March, 1982. 



§ 91-5-27. Effect of no provision for husband or wife. 

If the will of the husband or wife shall not make any provision for the 
other, the survivor of them shall have the right to share in the estate of the 
deceased husband or wife, as in case of unsatisfactory provision in the will of 
the husband or wife for the other of them. In such case a renunciation of the 
will shall not be necessary, but the rights of the survivor shall be as if the will 
had contained a provision that was unsatisfactory and it had been renounced. 

SOURCES: Codes, 1880, § 1173; 1892, § 4497; Laws, 1906, § 5087; Hemingway's 
1917, § 3375; Laws, 1930, § 3562; Laws, 1942, § 669. 

JUDICIAL DECISIONS 



1. In general. 

No revocation of will as matter of law 
occurred when, subsequent to death of 
beneficiary, constructive trust was im- 



posed on assets of estate resulting in hus- 
band's will making no provision for wife. 
Shattuck v. Estate of Tyson, 508 So. 2d 
1077 (Miss. 1987). 



78 



Wills and Testaments 



§ 91-5-29 



The trial court erred in holding that a 
husband was not entitled to an undivided 
one-half interest in the real and personal 
property owned by his deceased wife 
where, although the parties had lived 
apart for 15 to 20 years, there was no 
substantial evidence to show a desertion 
or abandonment as to estop the husband 
from claiming under the statute; at most 
the evidence proved that there had been a 
long separation between the parties. 
Tillman v. Williams, 403 So. 2d 880 (Miss. 
1981). 

A wife's failure to renounce her hus- 
band's will in the six months after its 
probate constituted a waiver of her right 
to do so. Rush v. Rush, 360 So. 2d 1240 
(Miss. 1978). 

In an action between the beneficiaries 
under testator's will and the heirs of his 
widow, who had renounced the will, the 
chancellor, after finding the testator's net 
estate and the widow's net estate at the 
time of testator's death, correctly deter- 
mined that the estate should be distrib- 
uted according to Code 1942, § 670, and 
that the widow's heirs were entitled to the 
difference between one half of the net 
estate of the testator and the net value of 
the widow's estate. The contention by the 



heirs at law of the widow that under the 
provisions of this section [Code 1942, 
§ 669] the widow was entitled to one half 
of the real and personal estate of the 
testator without regard to Code 1942, 
§ 670, and that in any event they were 
entitled to an undivided one third interest 
in the real property and one third of the 
net distribution of the personal property 
of the deceased, was rejected. Carter v. 
Evans, 230 Miss. 803, 94 So. 2d 237 
(1957). 

Husband's will giving property to one 
who provided for him pursuant to contract 
prior to his marriage to the wife who 
survived him, and while a former wife was 
still living, was not abrogation of contract 
which would enable widow to renounce 
will. Price v. Craig, 164 Miss. 42, 143 So. 
694 (1932). 

Husband not provided for in will, held 
entitled to undivided one-half interest in 
homestead lands devised by wife. Cain v. 
Barnwell, 125 Miss. 123, 87 So. 481 
(1921). 

Husband without separate estate enti- 
tled to undivided interest in land devised 
where wife's will made no provision for 
him. Caine v. Barnwell, 120 Miss. 209, 82 
So. 65 (1919). 



RESEARCH REFERENCES 



ALR. Inclusion of funds in savings bank 
trust (Totten Trust) in determining sur- 
viving spouse's interest in decedent's es- 
tate. 64 A.L.R.3d 187. 

Surviving spouse's right to marital 
share as affected by valid contract to con- 
vey by will. 85 A.L.R.4th 418. 

Am Jur. 25 Am. Jur. PI & Pr Forms 



(Rev), Wills, Forms 161 et seq. (election 
whether to take under will). 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-5-29. Effect of wife or husband having separate estate. 

In case the wife have a separate property at the time of the death of her 
husband, equal in value to what would be her lawful portion of her husband's 
real and personal estate, and he have made a will, she shall not be at liberty 
to signify her dissent to the will or to renounce any provision or bequest therein 
in her favor and elect to take her portion of his estate. If her separate property 
be not equal in value to what would be the value of her portion of her husband's 
estate, then she may signify her dissent to the will, as in other cases provided 
by law, and claim to have the deficiency made up to her, notwithstanding the 
will. The court in which the will is probated may appoint three commissioners 



79 



§ 91-5-29 



Trusts and Estates 



to ascertain, by valuation of the estate, what her lawful portion thereof would 
be worth; and the commissioners shall also value her own separate estate and 
report their valuation to the court. Whereupon the court shall make the proper 
order for allowing her to share in her husband's real and personal estate to 
make up the deficiency after the following rule: if her separate property be 
equal in value to two thirds of what she would be entitled to, she shall have one 
third of her lawful portion of the land and one third of what would be her 
distributive share of the personalty; if her separate property be worth half in 
value what she would be entitled to, then she shall be entitled to half her 
lawful portion of real estate and half of what would be her distributive share 
of the personalty; if her separate property be worth only one third in value 
what she would be entitled to, then she shall be entitled to two thirds of her 
lawful portion of real estate and two thirds of what would be her distributive 
share in the personalty This section shall not preclude or prevent any married 
woman from renouncing the provisions of her husband's will and electing to 
take her lawful portion if her separate property do not amount in value to one 
fifth of what she would be entitled to. This section shall apply to a husband 
renouncing the will of his wife, and shall govern as to his right to share in her 
estate in such case. 

SOURCES: Codes, 1857, ch. 40, art. 30; 1871, § 1789; 1880, § 1175; 1892, § 4499; 
Laws, 1906, § 5089; Hemingway's 1917, § 3377; Laws, 1930, § 3563; Laws, 
1942, § 670. 

JUDICIAL DECISIONS 



1. In general. 

2. Institution of valuation proceedings. 

3. What includible in survivor's sepa- 

rate estate. 

4. What includible in deceased's estate. 

5. Particular applications. 

1. In general. 

The rule for the distribution of the es- 
tate of a decedent upon renunciation of a 
will is to determine the value of the gross 
estate of the decedent, deduct from that 
amount the debts of the decedent, admin- 
istrative expenses and funeral expenses, 
leaving the net value of the decedent's 
estate; when the surviving spouse is enti- 
tled to one-half of the estate, the net value 
must be divided by two and the net value 
of the estate of the surviving spouse is 
deducted from such figure, and any bal- 
ance remaining would be a deficiency to be 
made up to the surviving spouse. Banks v. 
Junk, 264 So. 2d 387, 69 A.L.R.3d 1070 
(Miss. 1972). 

Husband whose property greatly ex- 
ceeds that of his wife may not renounce 



her will. Biggs v. Roberts, 237 Miss. 406, 
115 So. 2d 151 (1959). 

Widow who had entered into a property 
settlement agreement with husband may 
not elect to take against his will unless 
her estate is less than one half of her 
deceased husband's estate. Best's Will v. 
Brewer, 236 Miss. 359, 111 So. 2d 262 
(1959). 

Where a husband can properly re- 
nounce his wife's will, and there are no 
children, he is entitled to one half of the 
estate of his deceased wife; however, the 
right of a husband to renounce is qualified 
by this section [Code 1942, § 670], which 
expressly applies to husband renouncing 
the will of his wife. Myers v. Laird, 230 
Miss. 675, 93 So. 2d 828 (1957). 

Under Code 1942, § 668, together with 
this section [Code 1942, § 670], the widow 
is entitled to one-half of testator's net 
estate, where he died leaving widow and 
adopted son as only heirs of law. Campbell 
v. Cason, 206 Miss. 420, 40 So. 2d 258 
(1949). 



80 



Wills and Testaments 



§ 91-5-29 



The effect of renunciation is to make the 
deceased spouse an intestate as to one- 
half of the willed property, leaving the will 
to stand as to the other half, so that the 
deductions provided in this section [Code 
1942, § 670] on account of the separate 
estate of the surviving spouse are to be 
taken out of the half of the total estate to 
which the surviving spouse is limited by 
Code 1942, § 668. Davis v. Miller, 202 
Miss. 880, 32 So. 2d 871 (1947). 

The widow is not made a creditor of the 
estate by this section [Code 1942, § 670] 
where she has elected to take against her 
husband's will. Gordon v. James, 86 Miss. 
719, 39 So. 18 (1905). 

2. Institution of valuation proceed- 

ings. 

Beneficiaries under will desiring to 
have widow's separate estate counted 
against her apportionment should file pe- 
tition stating facts, but the petition cannot 
be heard until 12 months after probate 
and before final settlement. Simpson v. 
Simpson, 120 Miss. 197, 82 So. 3 (1919). 

Proceeding to appoint commissioner 
may be instituted by executor or any per- 
son interested, but all interested persons 
must be made parties. Jones v. Jones, 94 
Miss. 460, 49 So. 115 (1909). 

3. What includible in survivor's sepa- 

rate estate. 

Contention by the heirs at law of widow 
that joint and survivorship bank accounts 
in the name of the widow and the testator, 
who predeceased widow, were not prop- 
erly a part of the widow's separate estate, 
was rejected. Carter v. Evans, 230 Miss. 
803, 94 So. 2d 237 (1957). 

Proceeds of insurance which widow took 
as sole heir of husband were not part of 
her separate estate. O'Reily v. Laughlin, 
92 Miss. 1, 45 So. 19 (1907). 

4. What includible in deceased's es- 

tate. 

Contention by the heirs at law of widow 
that joint and survivorship bank accounts 
in the name of the widow and the testator, 
who predeceased widow, were not prop- 
erly a part of the widow's separate estate, 
was rejected. Carter v. Evans, 230 Miss. 
803, 94 So. 2d 237 (1957). 

Where the testator prior to her mar- 
riage to appellant had signed and ac- 



knowledged a warranty deed conveying 
her farm to her niece, reserving to herself 
a life estate, and handed the deed to her 
brother with the instructions to keep and 
deliver it to the niece upon the testator's 
death, there was a valid delivery from the 
testator to the niece, so that the value of 
the farm did not form a part of the testa- 
tor's estate. Myers v. Laird, 230 Miss. 675, 
93 So. 2d 828 (1957). 

Where a number of Series E Savings 
Bonds were payable jointly to the wife or 
some third persons designated therein, 
the bonds, upon the wife's death, were not 
a portion of her estate, since the surviving 
co-owners of the bonds became the sole 
and absolute owners. Myers v. Laird, 230 
Miss. 675, 93 So. 2d 828 (1957). 

Where a certificate of deposit in the 
bank was payable to the wife or the wife's 
brother, upon the death of the wife, this 
deposit became the property of the 
brother, and was no portion of the wife's 
estate. Myers v. Laird, 230 Miss. 675, 93 
So. 2d 828 (1957). 

5. Particular applications. 

In an action between the beneficiaries 
under testator's will and the heirs of his 
widow, who had renounced the will, the 
chancellor, after finding the testator's net 
estate and the widow's net estate at the 
time of testator's death, correctly deter- 
mined that the estate should be distrib- 
uted according to this section [Code 1942, 
§ 670], and that the widow's heirs were 
entitled to the difference between one half 
of the net estate of the testator and the net 
value of widow's estate. Carter v. Evans, 
230 Miss. 803, 94 So. 2d 237 (1957). 

In a proceeding to determine whether a 
surviving husband's separate estate was 
equal in value to one half portion of his 
deceased wife's estate, the chancellor 
properly found that the husband had not 
conveyed his one half interest in certain 
Louisiana property to his children prior to 
death of testator, but that he had given his 
children the property by an act of dona- 
tion after the event; thus, the value of the 
husband's one half interest in the Louisi- 
ana property, less one half of the outstand- 
ing mortgage loan, should have been in- 
cluded in the valuation of his separate 
estate along with the value of his personal 
property, and he was precluded by this 



81 



§ 91-5-31 



Trusts and Estates 



section [Code 1942, § 670] from renounc- 
ing his wife's will, which made no provi- 
sion for him, since his property at the time 
of her death was more than equal in value 
to what would have been his lawful por- 
tion of her estate. Myers v. Laird, 230 
Miss. 675, 93 So. 2d 828 (1957). 

Where a testatrix had willed an estate 
of the value of $90,000, and surviving 



husband had a separate estate worth 
$30,000, upon renunciation the surviving 
husband was entitled only to have the 
value of his separate estate deducted from 
one-half of the value of testatrix's estate, 
leaving the sum of $15,000 as a deficiency 
to be made up for the surviving husband. 
Davis v. Miller, 202 Miss. 880, 32 So. 2d 
871 (1947). 



RESEARCH REFERENCES 



Surviving spouse's right to marital 
share as affected by valid contract to con- 
vey by will. 85 A.L.R.4th 418. 

Am Jur. 25 Am. Jur. PI & Pr Forms 
(Rev), Wills, Forms 161 et seq. (election 
whether to take under will). 

Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



ALR. Waiver or abandonment of, or 
estoppel to assert, prior renunciation of, 
or election to take against, spouse's will. 
29 A.L.R.2d 227. 

What passes under provision of will 
that spouse shall take share of estate 
allowed or provided by law, or a provision 
of similar import. 36 A.L.R.2d 147. 

Who must bear loss occasioned by elec- 
tion against will. 36 A.L.R.2d 291. 

What constitutes transfer outside the 
will precluding surviving spouse from 
electing statutory share under Uniform 
Probate Code § 2-301. 11 A.L.R.4th 1213. 

§ 91-5-31. Repealed. 

Repealed by Laws, 1993, ch. 342, § 1, eff from and after passage (approved 
March 10, 1993). 

[Codes, 1892, § 4501; 1906, § 5091; Hemingway's 1917, § 3379; 1930, 
§ 3565; 1942, § 671; Laws, 1940, ch. 318; 1988, ch. 489, § 1] 

Editor's Note — Former § 91-5-31 was a statute of mortmain, and provided certain 
restrictions on how a person could, by will, bequeath or devise his assets to charitable, 
religious, educational or civil institutions. Similar provisions are contained in Miss. 
Const., Art. 14, § 270. 

JUDICIAL DECISIONS 



The legislature intended the repeal of 
the statute to be effective as of its date of 
passage in that there is no savings clause 
included. Hudson v. Moon, 732 So. 2d 927 
(Miss. 1999). 

Where heirs at law had a vested re- 
mainder, subject to defeasance by the ex- 
ercise of a power of disposition by the 



defendant foundation, but the foundation 
failed to exercise such power, the subse- 
quent repeal of the statute did not affect 
the heirs' rights and they maintained 
rights in the land not disposed of by the 
foundation. Hudson v. Moon, 732 So. 2d 
927 (Miss. 1999). 



§ 91-5-33. Person who kills another not to take under his will. 

If any person shall wilfully cause or procure the death of another in any 
manner, he shall not take the property, or any part thereof, real or personal, of 



82 



Wills and Testaments § 91-5-35 

such other under any will, testament, or codicil. Any devise to such person 
shall be void and, as to the property so devised, the decedent shall be deemed 
to have died intestate. 

This shall not defeat the title of a bona fide purchaser for value of the 
property so devised, who acquired the same after one year from the probation 
of the will without notice that the person to whom the same was devised so 
caused or procured the death of the testator. 

SOURCES: Codes, 1892, § 4502; Laws, 1906, § 5092; Hemingway's 1917, § 3380; 
Laws, 1930, § 3566; Laws, 1942, § 672. 

Cross References — Inheritance by killer from his victim, see § 91-1-25. 

JUDICIAL DECISIONS 

1. In general. spouse, and the fact that a husband shot 

Evidence of a guilty plea to a charge of and killed his wife, an act which would 

manslaughter is not sufficient, standing have precluded his inheriting her estate, 

alone, to enable a fact finder to conclude is no justification for permitting the de- 

that one is prohibited from inheriting un- ceased wife's personal representatives to 

der §§ 91-1-25 and 91-5-33. Hood v. renounce the husband's will, an act which 

VanDevender, 661 So. 2d 198 (Miss. 1995). by law can only be invoked personally by a 

Equitable estoppel does not and cannot surviving spouse. Jenkins v. Borodofsky, 

authorize the exercise of a personal right 211 So. 2d 874 (Miss. 1968). 
which terminates with the death of a 

RESEARCH REFERENCES 

ALR. Felonious killing of testator as Am Jur. 79 Am. Jur. 2d, Wills § 154. 

affecting slayer's rights as beneficiary un- CJS. 95 C.J.S., Wills §§ 100, 101. 

der will. 36 A.L.R.2d 960. Law Reviews. 1978 Mississippi Su- 

Felonious killing of ancestor as affect- pre me Court Review: Miscellaneous. 50 

ing intestate succession. 39 A.L.R.2d 477. Miss. L. J. 165 March 1979. 

Homicide as precluding taking under 
will or by intestacy. 25 A.L.R.4th 787. 

§ 91-5-35. Will devising real property admitted to probate as 
muniment of title only; rights of interested parties unaf- 
fected. 

(1) When a person dies testate owning at the time of death real property 
in the state of Mississippi and his will purports to devise such realty, then said 
will may be admitted to probate, as a muniment of title only, by petition signed 
and sworn to by all beneficiaries named in the will, and the spouse of such 
deceased person if such spouse is not named as a beneficiary in the will, 
without the necessity of administration or the appointment of an executor or 
administrator with the will annexed, provided it be shown by said petition 
that: 

(a) The value of the decedent's personal estate in the state of Missis- 
sippi at the time of his or her death, exclusive of any interest in real property, 



83 



§ 91-5-35 Trusts and Estates 

did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of 
exempt property; and 

(b) All known debts of the decedent and his estate have been paid, 
including estate and income taxes, if any. 

(2) If any beneficiary to any will admitted to probate pursuant to this 
section shall be under a disability, then the petition may be signed for him by 
one of his parents or his legal guardian. 

(3) The probate of a will under this section shall in no way affect the rights 
of any interested party to petition for a formal administration of the estate or 
to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or 
the right of anyone desiring to contest a will presented for probate as provided 
by Section 91-7-21, or as otherwise provided by law. 

(4) This section shall apply to wills admitted to probate from and after 
July 1, 1984, notwithstanding that the testator or testatrix may have died on 
or before July 1, 1984. 

SOURCES: Laws, 1983, ch. 385; Laws, 1984, ch. 467; Laws, 1989, ch. 582, § 1, eff 
from and after July 1, 1989. 



84 



CHAPTER 7 
Executors and Administrators 



Venue of proof of wills. 

By whom presented. 

Production of will compelled. 

Proof of due execution of will. 

Affidavit of subscribing witness receivable. 

Affidavits may be used to authenticate holographic wills or codicils. 

Testimony of absent witness. 

Testimony on probating will reduced to writing. 

Will executed by person in armed forces — additional manner of proof. 

Rejection of will not binding. 

All interested may be made parties. 

Caveat against probate may be filed. 

Validity contested within two years. 

Necessary parties to contest. 

Probate of will prima facie evidence. 

Trial of issue devisavit vel non. 

Wills recorded. 

Foreign wills recorded. 

Grant of letters testamentary. 

Eighteen the age of majority for executors and administrators. 

Administration with will annexed. 

Oath and bond of executor or administrator with will annexed. 

Executor as residuary legatee. 

When bond not required. 

Rights and duties of executor or administrator with will annexed. 

Directions of will to be followed. 

Effect of receipt for money by executor or trustee. 

Temporary administrator. 

Estate to be appraised. 

Powers of temporary administrator. 

Compensation of temporary administrator. 

Administrator to institute suits. 
-7-63. Grant of administration. 

-7-65. Persons disqualified to administer. 

-7-67. Oath and bond of administrator. 

-7-68. Administrator of estate of intestate under legal disability. 

-7-69. Administration de bonis non. 

-7-71. Rights of administrator de bonis non. 

-7-73. County administrator. 

-7-75. Bond and oath of county administrator. 

-7-77. Additional bond may be required. 

-7-79. Letters granted to county administrator. 

-7-81. Accounts to be filed when office vacated. 

-7-83. Sheriff administrator in certain cases. 

91-7-85. Removal and surrender of trust. 

91-7-87. Administration revoked by proof of will and grant of letters testamen- 

tary. 
91-7-89. Letters of certain nonresidents revoked. 

91-7-91. Assets defined; unsecured creditors to give notice. 

91-7-93. Inventory of money, debts due decedent, and property not appraised. 

85 



Trusts and Estates 

91-7-95. Additional inventory. 

91-7-97. Adoption of collector's inventory or new inventory. 

91-7-99. All to join in returning inventory. 

91-7-101. Debt from executor or administrator inventoried. 

91-7-103. Summary proceeding for discovery of assets. 

91-7-105. Failure to return inventory. 

91-7-107. Perfect inventory may be compelled. 

91-7-109. Inventory and appraisement by disinterested persons. 

91-7-111. Warrants of appraisement to different counties. 

91-7-113. Form of warrant. 

91-7-115. Administration of oath and how vacancies filled. 

91-7-117. Appraisers to set apart exempt property. 

91-7-119 through 91-7-33. Repealed. 

91-7-135. Appraisers to set apart one year's support for family. 

91-7-137. Appraisers to report. 

91-7-139. Extension of time; defaulting appraiser fined. 

91-7-141. Court may apportion year's allowance. 

91-7-143. Minor distributee or legatee maintained. 

91-7-145. Notice to creditors of estate. 

91-7-147. Newspaper notices dispensed with in small estates. 

91-7-149. Probate of claims. 

91-7-151. Claims to be registered in ninety days or barred; amendment of 

affidavits. 

91-7-153. Registration of claim stops limitation. 

91-7-155. Executor to pay probated, registered debts. 

91-7-157. Executor to pay taxes. 

91-7-159. Agreement with commissioner of internal revenue to exercise discretion 

in distributing assets of estate or trust. 

91-7-161. Creditors whose claims are not due must accept payment. 

91-7-163. Claim of executor or administrator to be treated same as other claims. 

91-7-165. Claims may be contested. 

91-7-167. Creditor having lien failing to present claim. 

91-7-169. Growing crop. 

91-7-171. Farm may be cultivated or rented. 

91-7-173. Executor or administrator may continue business for limited time. 

91-7-175. Sale of perishable property. 

91-7-177. Private sale of personal property. 

91-7-179. Sale for appraised value without order. 

91-7-181. Certain property may be sold without being present. 

91-7-183. Public sale of personal property. 

91-7-185. Report of sale and proceedings. 

91-7-187. Sale of land in preference to personalty. 

91-7-189. Sale to pay the purchase-money of land. 

91-7-191. Sale of land upon insufficiency of personalty. 

91-7-193. Waste of personal estate no bar. 

91-7-195. Creditors may apply for sale of property. 

91-7-197. Interested parties to be cited upon petition to sell property. 

91-7-199. Hearing and decree. 

91-7-201. Mistake in description of land may be corrected. 

91-7-203. Bond to pay debts may be given and decree for sale not made. 

91-7-205. Bond required in decree for sale of lands; waiver of bond. 

91-7-207. Failure to give bond. 

91-7-209. Purchase-money a charge on property. 

91-7-211. Estoppel from receipt of purchase-money. 

91-7-213. Borrowing money to pay claims. 

86 



Executors and Administrators 

91-7-215. Procedure for borrowing. 

91-7-217. Overplus and contribution. 

91-7-219. Procedure in vacation. 

91-7-221. Executor or administrator to make title to land. 

91-7-223. Executors and administrators may make deeds of conveyance. 

91-7-225. Lands may be leased to pay debts. 

91-7-227. Executors and administrators to renew obligation and encumbrances of 

estate. 

91-7-229. Claims may be sold or compromised. 

91-7-231. Actions which accrue in administration. 

91-7-233. What actions survive to executor or administrator. 

91-7-235. What actions survive against executor or administrator. 

91-7-237. Death of party not to abate suit in certain cases. 

91-7-239. Executor or administrator not to be sued for ninety days. 

91-7-241. Suit by or against administrator not to abate. 

91-7-243. Not bound to plead specially. 

91-7-245. Any one interested may defend suit. 

91-7-247. Actions which accrue between administrators. 

91-7-249. Executor in his own wrong. 

91-7-251. Liability of executor or administrator of an executor de son tort. 

91-7-253. Fiduciary not to use funds; investment by fiduciary bank in time 

certificates of deposit. 

91-7-255. Fiduciary not to transfer negotiable papers. 

91-7-257. Property not to be removed from state. 

91-7-259. Foreign executor or administrator may sue. 

91-7-261. Procedures for insolvent estates. 

91-7-263. Creditor may institute insolvency proceedings. 

91-7-265. Decree of insolvency after all property sold. 

91-7-267. Publication and claims presented in insolvent estate. 

91-7-269. Filing, examination, and adjudication of claims in insolvent estate. 

91-7-271. Distribution of assets in insolvent estate. 

91-7-273. Suits not to abate on insolvency. 

91-7-275. Suit not allowed after decree of insolvency. 

91-7-277. Annual accounts. 

91-7-279. Requirements of vouchers. 

91-7-281. Attorney's fees allowable. 

91-7-283. Defaulters to be listed and cited. 

91-7-285. Process for derelict fiduciary. 

91-7-287. Publication of process for defaulter. 

91-7-289. Hearing for derelict fiduciary. 

91-7-291. Final accounts. 

91-7-293. Names of interested parties to be stated. 

91-7-295. Summons or publication for final account. 

91-7-297. Hearing and adjudication of final account. 

91-7-299. Allowance to executor or administrator. 

91-7-301. Personal estate sold for division. 

91-7-303. Distribution compelled. 

91-7-305. Distribution of assets in kind to surviving spouse. 

91-7-307. Delaying settlement. 

91-7-309. Accounts may be opened and falsified in two years. 

91-7-311. Bonds to be recorded; suits thereon. 

91-7-313. Suit for devastavit. 

91-7-315. New bond of executors and administrators may be required. 

91-7-317. Relief of sureties and new bond. 

91-7-319. Executors may receive credit for costs of bond in surety company. 

87 



§ 91-7-1 Trusts and Estates 

91-7-321. Custodian appointed for distributive share. 

91-7-322. Payment of indebtedness or delivery of personal property of decedent to 

decedent's successor; affidavit of successor. 

91-7-323. Wages due deceased employee. 

91-7-325. Suit to recover wages if not paid within sixty days. 

91-7-327. Duty of chancery clerk when wages paid to him. 

91-7-329. Not to apply to estates administered upon. 

91-7-331. "Administrator" denned. 

§ 91-7-1. Venue of proof of wills. 

Wills shall be proved in and letters testamentary thereon granted by the 
chancery court of the county in which the testator had a fixed place of 
residence. If he had no fixed place of residence and land be devised in the will, 
it shall be proved in and letters granted by the chancery court of the county 
where the land, or some part thereof, is situated. If the testator had no fixed 
place of residence and personal property only be disposed of by the will, it may 
be proved in and letters granted by the chancery court of the county where the 
testator died, or of the county in which some part of the property may be. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (24); 1857, ch. 60, art. 42; 
1871, § 1098; 1880, § 1960; 1892, § 1813; Laws, 1906, § 1988; Hemingway's 
1917, § 1653; Laws, 1930, § 1599; Laws, 1942, § 495. 

Cross References — Definition of "will", see § 1-3-61. 

Jurisdiction of chancery court over matters of administration of estates, see § 9-5-83. 
Wills and testaments generally, see §§ 91-5-1 et seq. 
Probate of will as prima facie evidence of its validity, see § 91-7-27. 
Grant of letters of administration, see § 91-7-63. 

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject 
to the provisions of Title 91, see Miss. R. Civ. P. 81. 

JUDICIAL DECISIONS 

1. In general. Halford v. Hines, 223 Miss. 786, 79 So. 2d 

If the testator had no fixed place of 264 (1955). 
residence, and only personal property is to Domestic will when probated and re- 
be disposed of by the will, it may be proved corded in county in which testator resided 
in, and letters granted by, the chancery at time of death constituted notice 
court of the county where the testator throughout state to subsequent mort- 
died, or the county in which some part of gagee of land in Mississippi devised by 
the property may be. Halford v. Hines, 223 will, without necessity of recording will in 
Miss. 786, 79 So. 2d 264 (1955). county wherein land was situated. Fed- 

Where it was shown that the testator eral Land Bank v. Newsom, 175 Miss. 114, 

had lived for seventy years on the farm, 161 So. 864 (1935), adhered to, 175 Miss, 

and when he moved to a town did not 131, 166 So. 345 (1936). 

move any of his household effects and a Probate of will is a proceeding in rem 

witness testified that the testator was having no effect on property outside of 

coming back home, the evidence was suf- jurisdiction where will probated, 

ficient to support the finding that the Woodville v. Pizzati, 119 Miss. 442, 81 So. 

testator had not changed his residence. 127 (1919). 

88 



Executors and Administrators 



§ 91-7-3 



RESEARCH REFERENCES 



ALR. Adverse interest or position as 
qualification for appointment of adminis- 
trator, executor, or other personal repre- 
sentative. 11 A.L.R.4th 638. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 748 et 
seq. 

CJS. 95 C.J.S., Wills §§ 524 et seq. 

Law Reviews. Weems and Evans, Mis- 
sissippi law of intestate succession, wills, 
and administration and the proposed Mis- 
sissippi Uniform Probate Code: a compar- 
ative analysis. 62 Miss. L. J. 1, Spring, 
1992. 

Practice References. Robinson and 
Mobley, Pritchard on the Law of Wills and 
Administration of Estates, Fifth Edition 
(Michie). 

Burke, Friel, and Gagliardi, Modern Es- 
tate Planning, Second Edition (Matthew 
Bender). 



Freeman and Rapkin, Planning for 
Large Estates (Matthew Bender). 

Schoenblum, Estate Planning Forms 
and Clauses with CD Rom (Anderson Pub- 
lishing). 

Christensen, International Estate Plan- 
ning, Second Edition (Matthew Bender). 

Murphy's Will Clauses: Annotations 
and Forms with Tax Effects (Matthew 
Bender). 

Nossaman and Wyatt, Trust Adminis- 
tration and Taxation (Matthew Bender). 

Bickel, Living Trusts: Forms and Prac- 
tice (Matthew Bender). 

Estate Planning Package (CD-ROM) 
(LexisNexis). 



§ 91-7-3. By whom presented. 

When any last will and testament is exhibited to be proved, the court may 
take the probate thereof, and any one interested in a will may propound it for 
probate. Summons may be issued by the clerk for the subscribing witnesses, or 
for other witnesses, to be examined as to such will. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (29); 1857, ch. 60, art. 43; 
1871, § 1099; 1880, §§ 1961, 1992; 1892, § 1814; Laws, 1906, § 1989; Heming- 
way's 1917, § 1654; Laws, 1930, § 1600; Laws, 1942, § 496. 

JUDICIAL DECISIONS 



1. In general. 

The probation of 1980 will in common 
form and its admission to probate created 
prima facie evidence that the will was 
valid. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

The probate of a will in common form is 
not a final adjudication of its validity but 
is an "incipient step" necessary to enable 
the court to proceed to carry the will into 
execution, and it is not conclusive against 
heirs and distributees, and if they desire 
to contest the validity of the will this shall 
be done by an issue devisavit vel non. 
Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 
786 (1964). 

Where a niece and two nephews had 
recited in a sworn petition for letters of 



administration that their aunt had died 
intestate some five years previously, al- 
though at the time admittedly all knew of 
the existence of the aunt's will, and the 
estate had been administered and dis- 
charged, the niece was estopped 21 years 
later from offering the aunt's will to pro- 
bate. Logan v. Smith, 229 Miss. 513, 91 So. 
2d 707 (1956). 

If from any cause the original will can- 
not be had, secondary evidence of its con- 
tents is admissible, and it may be pro- 
bated in that form. Pratt v. Hargraves, 77 
Miss. 892, 28 So. 722, 78 Am. St. R. 551 
(1900). 

The refusal to probate a will in common 
form because of insufficient proof does not 
preclude the subsequent probate on suffi- 



89 



§ 91-7-5 Trusts and Estates 

cient evidence. Martin v. Perkins, 56 Miss. 
204 (1878). 

RESEARCH REFERENCES 

ALR. Probate where two or more testa- Am Jur. 31 Am. Jur. 2d, Executors and 
mentary documents, bearing the same Administrators § 386. 
date or undated, are proffered. 17 79 Am. Jur. 2d, Wills §§ 776 et seq. 

A.L.R.3d 603. CJS. 95 C.J.S., Wills § 468. 

What circumstances excuse failure to 
submit will for probate within time limit 
set by statute. 17 A.L.R.3d 1361. 

§ 91-7-5. Production of will compelled. 

The chancery court of the proper county, on being informed that any 
person has the last will and testament of a testator or testatrix, may compel 
such person to produce it. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (22); 1857, ch. 60, art. 47; 
1871, § 1103; 1880, § 1977; 1892, § 1830; Laws, 1906, § 2005; Hemingway's 
1917, § 1670; Laws, 1930, § 1601; Laws, 1942, § 497. 

RESEARCH REFERENCES 

ALR. Sufficiency of evidence to support Am Jur. 79 Am. Jur. 2d, Wills §§ 730 et 

grant of summary judgment in will pro- seq. 

bate or contest proceedings. 53 A.L.R.4th CJS. 95 C.J.S., Wills §§ 453-456, 664. 
561. 

§ 91-7-7. Proof of due execution of will. 

The due execution of the will, whether heretofore or hereafter executed, 
must be proved by at least one (1) of the subscribing witnesses, if alive and 
competent to testify. If none of the subscribing witnesses can be produced to 
prove the execution of the will, it may be established by proving the handwrit- 
ing of a testator and of the subscribing witnesses to the will, or of some of them. 
The execution of the will may be proved by affidavits of subscribing witnesses. 
The affidavits may be annexed to the will or may be a part of the will, and shall 
state the address of each subscribing witness. Such affidavits may be signed at 
the time that the will is executed. 

SOURCES: Codes, 1871, § 1117; 1880, § 1963; 1892, § 1815; Laws, 1906, § 1991; 
Hemingway's 1917, § 1656; Laws, 1930, § 1602; Laws, 1942, § 498; Laws, 
1946, ch. 335, § 1; Laws, 1992, ch. 383, § 1, eff from and after July 1, 1992. 

Cross References — Number of witnesses of will required, see § 91-5-1. 

Nuncupative wills, see § 91-5-15. 

Wills of members of armed forces and mariners, see § 91-5-21. 



90 



Executors and Administrators 



§ 91-7-7 



JUDICIAL DECISIONS 



1. In general. 

2. Resort to secondary evidence. 

1. In general. 

A record of probate in common form 
which does not contain the affidavit of a 
subscribing witness or other testimony in 
writing proving the validity of the will, 
and no explanation of the absence of such 
proof, is not prima facie evidence of the 
validity of the will. Gibson v. Jones, 238 
Miss. 186, 117 So. 2d 879 (1960). 

In a will contest where proponents in- 
troduced a record of probate of will in 
common form, it was not necessary that 
they go further and make proof of will by 
having one of subscribing witnesses 
present to testify. Bearden v. Gibson, 215 
Miss. 218, 60 So. 2d 655 (1952). 

This section [Code 1942, § 498] does not 
require that the execution of the will be 
proved by more than one of the subscrib- 
ing witnesses, and where one of two sub- 
scribing witnesses testifies to every fact 
necessary to the due execution of a lost 
will, together with evidence that the tes- 
tator made corroborative statements up to 
the time of her death, the proponent was 
held to have met the burden of proof, 
notwithstanding that the other subscrib- 
ing witnesses denied his attestation or 
presence at the execution thereof. Warren 
v. Sidney's Estate, 183 Miss. 669, 184 So. 
806 (1938). 

Evidence of subscribing witness that 
testatrix told him that instrument was 
her will, that she had signed it and 
wanted him to sign it as a witness, and 
that he did so in her presence, and testi- 
mony of other witness who did not sign in 
presence of other subscribing witness and 
was not present when other witness 
signed that testatrix told him instrument 
was her will and requested him to sign it 



as a witness, was sufficient to authorize 
admission of will to probate in solemn 
form. Austin v. Patrick, 179 Miss. 718, 176 
So. 714 (1937). 

If contestant introduces attesting wit- 
ness, failure of proponents to do so is 
corrected. Ward v. Ward, 124 Miss. 697, 87 
So. 153 (1921). 

2. Resort to secondary evidence. 

The trial court properly set aside a jury 
verdict finding that the decedent's lost or 
destroyed will had been properly executed 
where there was neither direct nor sec- 
ondary evidence that the alleged lost or 
destroyed will was ever signed, witnessed, 
and executed according to law. Gaston v. 
Gaston, 358 So. 2d 376 (Miss. 1978). 

When the witnesses to a lost will are 
dead, their attestation may be proved by 
secondary evidence. Willis' Estate v. Wil- 
lis, 207 So. 2d 348 (Miss. 1968). 

Although under Code 1942, § 498 the 
testimony of only one living witness is 
sufficient to establish a will's proper exe- 
cution, proof of two signatures of wit- 
nesses is required to prove due execution 
where the witnesses to a will are de- 
ceased. Willis' Estate v. Willis, 207 So. 2d 
348 (Miss. 1968). 

Proof of the due execution of the will 
may, if necessary, be made by others than 
subscribing witnesses, although subscrib- 
ing witnesses must be produced, if possi- 
ble. Warren v. Sidney's Estate, 183 Miss. 
669, 184 So. 806 (1938). 

Where subscribing witness will and can 
prove facts as to execution of will, second- 
ary evidence cannot be used until they 
have been called or produced. Helm v. 
Sheeks, 116 Miss. 726, 77 So. 820 (1917); 
Warren v. Sidney's Estate, 183 Miss. 669, 
184 So. 806 (1938). 



RESEARCH REFERENCES 



ALR. "Attestation" or "witnessing" of 
will, required by statute, as including wit- 
nesses' subscription. 45 A.L.R.2d 1365. 

Failure of attesting witness to write or 
state place of residence as affecting will. 
55 AL.R.2d 1053. 



Requirement that holographic will, or 
its material provisions, be entirely in tes- 
tator's handwriting as affected by appear- 
ance of some printed or written matter not 
in testator's handwriting. 37 A.L.R.4th 
528. 



91 



§ 91-7-9 



Trusts and Estates 



Sufficiency of evidence to support grant 
of summary judgment in will probate or 
contest proceedings. 53 A.L.R.4th 561. 

Am Jur. 80 Am. Jur. 2d, Wills §§ 874 et 
seq., 880 et seq. 

1 Am. Jur. Proof of Facts 2, Mistake in 
the Inducement in Wills, §§ 5 et seq. 
(proof of mistake in the inducement). 

24 Am. Jur. Proof of Facts 3d 667, Iden- 
tification of Handprinting and Numerals. 



25 Am. Jur. Proof of Facts 3d 637, Illeg- 
ible Signatures and Writing in Litigation. 
Practice References. Young, Trial 



Handbook for 
§§ 22:4, 22:5. 

CJS. 95 C.J.S. 
621. 



Mississippi Lawyers 
Wills §§ 595, 596, 616- 



§ 91-7-9. Affidavit of subscribing witness receivable. 

The affidavit of any subscribing witness to a will, made before and certified 
by any officer in the state competent to administer oaths, shall be received as 
a substitute for the personal attendance of the affiant to prove the will where 
there is no contest about it. 

SOURCES: Codes, 1880, § 1964; 1892, § 1817; Laws, 1906, § 1992; Hemingway's 
1917, § 1657; Laws, 1930, § 1603; Laws, 1942, § 499. 

Editor's Note — Laws, 1974, ch. 375, § 1, amended this section by adding a second 
paragraph. At the direction of the State Attorney General, the amendment was not 
executed, and instead, the second paragraph was designated as new code § 91-7-10. 

JUDICIAL DECISIONS 



1. In general. 

Under Code 1942, § 499 where there 
was no will contest, the affidavit of the 
subscribing witness constituted testimony 
of the attesting witness for the proponent 
of the will. Chapman v. Chapman, 264 So. 
2d 395 (Miss. 1972). 

The logical basis of the rule that sub- 
scribing witnesses to a will that has been 
admitted to probate in common form 
should be produced is that the affidavit of 
proof of due execution of a will authorized 
by statute is an ex parte statement by the 
subscribing witnesses. Chapman v. 
Chapman, 264 So. 2d 395 (Miss. 1972). 

A person contesting a will should be 
allowed to examine the subscribing wit- 
nesses to the will as to all matters rele- 
vant to the will's execution and to inquire 
into surrounding facts and circumstances 
so that the court may determine if the will 
was properly signed and attested, if attes- 
tation be required, and if the testator was 
mentally competent and free of undue 
influence. Chapman v. Chapman, 264 So. 
2d 395 (Miss. 1972). 

The contestant of a will was entitled to 
impeach the testimony of subscribing wit- 



nesses who were called by the contestant 
as adverse witnesses, in an affidavit 
which was the basis for admission of the 
will to probate, even if such impeachment 
was made by the witnesses' own testi- 
mony. Chapman v. Chapman, 264 So. 2d 
395 (Miss. 1972). 

A record of probate in common form 
which does not contain the affidavit of a 
subscribing witness or other testimony in 
writing proving the validity of the will, 
and no explanation of the absence of such 
proof, is not prima facie evidence of the 
validity of the will. Gibson v. Jones, 238 
Miss. 186, 117 So. 2d 879 (1960). 

In a will contest where proponents in- 
troduced a record of probate of will in 
common form, it was not necessary that 
they go further and make proof of will by 
having one of subscribing witnesses 
present to testify. Bearden v. Gibson, 215 
Miss. 218, 60 So. 2d 655 (1952). 

In a will contest after probate, propo- 
nents of a will, executed in Texas, were not 
required to make proof of the validity of 
the will by having the subscribing wit- 
nesses present to testify, or their testi- 



92 



Executors and Administrators § 91-7-11 

mony in the form of depositions, and a The affidavits of two subscribing wit- 
prima facie case of the validity of the will nesses to a will were sufficient for the 
was properly made out by introducing the probate thereof in common form. Austin v. 
probate of the will in common form by the Patrick, 179 Miss. 718, 176 So. 714 (1937). 
affidavits of the subscribing witnesses 
who resided in Texas. Hilton v. Johnson, 
194 Miss. 671, 12 So. 2d 524 (1943). 

§ 91-7-10. Affidavits may be used to authenticate holographic 
wills or codicils. 

Where there is not contest about it, a holographic will or codicil may be 
proved at the time of presentment for probate by the affidavits, made before an 
officer in the state authorized to administer oaths, of at least two (2) persons, 
in no wise interested in the estate of the testator or testatrix, attesting to the 
authenticity of the will or codicil and the competency of the testator or testatrix 
to make testamentary disposition of his or her property; provided, however, 
that such affiants shall be persons familiar with the handwriting and signa- 
ture of the testator or testatrix, and the affidavits so presented shall contain 
statements made on the personal knowledge of such affiants attesting that 
such handwriting and such signature are genuine and were made and done by 
the testator or testatrix; and in such case the affidavits made and presented in 
conformity herewith may be received as a substitute for the personal atten- 
dance of witnesses to prove such will or codicil. 

SOURCES: Laws, 1974, ch. 375, § 1, eff from and after passage (approved 
March 19, 1974). 

Editor's Note — Laws, 1974, ch. 375, § 1, amended § 91-7-9 by adding a second 
paragraph. At the direction of the State Attorney General, the second paragraph was 
designated as new code § 91-7-10. 

RESEARCH REFERENCES 

ALR. Competency of interested wit- Form 55 (petition or application to pro- 

nesses to testify to signature or handwrit- bate holographic will), 

ing of deceased. 13 A.L.R.3d 404. CJS. 95 C.J.S., Wills §§ 323-327, 457- 

Am Jur. 79 Am. Jur. 2d, Wills § 619. 460, 634-637, 684, 685. 

25 Am. Jur. PI & Pr Forms (Rev), Wills, 

§ 91-7-11. Testimony of absent witness. 

When any will shall be exhibited for probate and any witness who attested 
the will shall reside out of the state or be not found, either of the following 
methods may be used to prove the execution of the will, to wit: 

(a) A commission may issue to take his or her deposition, as in other 
cases of nonresident witnesses, to which the will shall be attached. Before 
such original will shall be sent abroad for proof, the clerk shall make and 
certify to a true copy thereof and file the copy in his office, and such certified 
true copy shall have the same legal force and effect of the original will and 

93 



§ 91-7-13 Trusts and Estates 

may be substituted for the original will should the original will be lost. 
Provided, however, where there is no contest, the affidavit of such nonresi- 
dent subscribing witness may be made before any officer competent to 
administer oaths in the state where such nonresident witness may be found. 
(b) Or, in lieu of sending the original will abroad for such proof, the clerk 
may have made a photostatic copy of said original will and certify to same as 
being a photostatic copy of said original will and send said certified 
photostatic copy of said original will abroad, instead of the original will; and 
in which case, the clerk shall file the original will in his office. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (28); 1857, ch. 60, art. 44; 
1871, § 1100; 1880, § 1972; 1892, § 1819; Laws, 1906, § 1994; Hemingway's 
1917, § 1659; Laws, 1930, § 1604; Laws, 1942, § 500; Laws, 1954, ch. 215; 
Laws, 1966, ch. 322, § 1, eff from and after passage (approved May 20, 
1966). 

§ 91-7-13. Testimony on probating will reduced to writing. 

If the will shall appear to have been duly executed, it shall be admitted to 
probate. All testimony taken in probating it shall be reduced to writing and 
filed and carefully preserved in the clerk's office. 

SOURCES: Codes, 1880, § 1965; 1892, § 1818; Laws, 1906, § 1993; Hemingway's 
1917, § 1658; Laws, 1930, § 1605; Laws, 1942, § 501. 

JUDICIAL DECISIONS 

1. In general. section [Code 1942, § 501] does not con- 

This section [Code 1942, § 501] and stitute prima facie evidence of the validity 

Code 1942, § 507 must be read together, of the will. Gibson v. Jones, 238 Miss. 186, 

Gibson v. Jones, 238 Miss. 186, 117 So. 2d 117 So. 2d 879 (1960). 

879 (1960). 
A record of probate in common form 

which fails to show compliance with this 

§ 91-7-15. Will executed by person in armed forces — addi- 
tional manner of proof. 

In addition to the manner in which wills may be proved and admitted to 
probate in the State of Mississippi under other laws, any will executed by any 
member of the armed forces of the United States during the Korean War, or 
any other war, may be proved and admitted to probate, and letters testamen- 
tary thereon granted, by the chancery court or the chancellor in vacation of the 
county in which such testator lived when he became a member of such armed 
forces, or by the chancery court or the chancellor in vacation of the county in 
which such testator owned land at the time of his death, on the affidavit of any 
reliable person or persons sufficient to satisfy the chancellor that the testator 
is dead, that the writing propounded for probate was signed by the testator as 
his last will and testament, that the affidavit or testimony of the subscribing 
witnesses to such will cannot reasonably be obtained, and that there is good 
reason for such will to be then probated. 

94 



Executors and Administrators § 91-7-19 

SOURCES: Codes, 1942, § 501-01; Laws, 1944, ch. 167, § 1; Laws, 1952, 
ch. 254. 

RESEARCH REFERENCES 

Am Jur. 25 Am. Jur. Proof of Facts 3d 
637, Illegible Signatures and Writing in 
Litigation. 

§ 91-7-17. Rejection of will not binding. 

The rejection of an ex parte application to probate a will shall not bind any 
one or extinguish any right. 

SOURCES: Codes, 1880, § 1966; 1892, § 1920; Laws, 1906, § 1995; Hemingway's 
1917, § 1660; Laws, 1930, § 1606; Laws, 1942, § 502. 

§ 91-7-19. All interested may be made parties. 

Any proponent of a will for probate may, in the first instance, make all 
interested persons parties to his application to probate the will, and in such 
case all who are made parties shall be concluded by the probate of the will. At 
the request of either party to such proceeding, an issue shall be made up and 
tried by a jury as to whether or not the writing propounded be the will of the 
alleged testator. 

SOURCES: Codes, 1880, § 1967; 1892, § 1821; Laws, 1906, § 1996; Hemingway's 
1917, § 1661; Laws, 1930, § 1607; Laws, 1942, § 503. 

JUDICIAL DECISIONS 

1. In general. Party who desires jury to try issue of 

2. Interested parties. devisavit vel non is under duty to specifi- 

3. Conclusiveness of decree. cally request jury before hearing on mat- 

ter. Varvaris v. Kountouris, 477 So. 2d 273 

1. In general. (Miss. 1985). 

Summary judgment is properly granted I n a probate action the chancery court 

where no genuine issues of material fact properly overruled a motion to exclude the 

have been presented although question of jury on the issue involving probate of a 

will or no will is primary issue in will 1961 will, where the mover's pleading 

contest and either party to will contest involving a 1979 will raised the issue of 

has automatic right to jury trial. Galla- revocation of the 1961 will, and where the 

gher v. Warden, 507 So. 2d 27 (Miss, question of revocation was a proper ques- 

1987). tion for the jury. Deposit Guar. Nat'l Bank 

Evidence that testator of advanced v. Cotten, 420 So. 2d 242 (Miss. 1982). 

years living in nursing home was depen- Although the evidence was conflicting, 

dent upon beneficiary to some degree is jury's finding that an alleged holographic 

insufficient basis for finding of confiden- will was not in the handwriting of the 

tial relationship resulting in will being deceased would not be disturbed by the 

product of undue influence where there is supreme court where there was ample 

no proof that testator looked to beneficiary evidence to warrant that conclusion, and 

to care for personal needs, to tend to him, the chancellor's decree had upheld a jury's 

or to handle his affairs. Varvaris v. verdict. In re Rumley's Estate, 234 Miss. 

Kountouris, 477 So. 2d 273 (Miss. 1985). 490, 106 So. 2d 678 (1958). 

95 



§ 91-7-21 



Trusts and Estates 



It was not required in a probate pro- 
ceeding that an issue devisavit vel non be 
tried to a jury. Darby v. Arrington, 194 
Miss. 123, 11 So. 2d 220 (1942). 

Where cousins of a testatrix's heir, who 
would inherit the estate if the will, under 
which the heir would receive a life estate, 
should be set aside, were precluded from 
prosecuting an appeal from a decree vali- 
dating the will, upon the death of the heir 
pending the appeal, since the proceedings 
involved the only persons then interested, 
and the cousins were not beneficiaries, his 
administrator, in his naked right as ad- 
ministrator of the only "interested per- 
son," could not (there being no creditors of 
the deceased heir's estate), prosecute the 
appeal, either on behalf of the estate or of 
the cousins. Darby v. Arrington, 194 Miss. 
123, 11 So. 2d 220 (1942). 

2. Interested parties. 

An administrator is not such an "inter- 
ested party" within statutes providing 
that a proponent may make all interested 
persons parties to application for probate 
of will and that any interested person may 



at any time within two years contest va- 
lidity of will probated without notice, as is 
authorized to contest will subsequently 
presented for probate. Austin v. Patrick, 
179 Miss. 718, 176 So. 714 (1937). 

3. Conclusiveness of decree. 

The admission of a will to probate was 
only prima facie evidence of its validity 
and would not conclude the heirs at law as 
interested parties from contesting will 
within two years in manner prescribed by 
statute, where the heirs at law had not 
been made parties to the petition for the 
probate thereof. Austin v. Patrick, 179 
Miss. 718, 176 So. 714 (1937). 

In proceeding to probate will and to 
remove administratrix theretofore ap- 
pointed, chancery court was without juris- 
diction to hear contest as to validity of will 
where none of the interested parties as 
such were before the court, and hence 
such parties would not be concluded by 
decree adjudicating validity of will. Austin 
v. Patrick, 179 Miss. 718, 176 So. 714 
(1937). 



RESEARCH REFERENCES 



ALR. Judgment denying validity of will 
because of undue influence, lack of mental 
capacity, or the like, as res judicata as to 
validity of another will, deed, or other 
instrument. 25 A.L.R.2d 657. 

Necessity that executor or administra- 
tor be represented by counsel in present- 



ing matters in probate court. 19 A.L.R.3d 
1104. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 776 et 
seq. 

25 Am. Jur. PI & Pr Forms (Rev), Wills, 
Forms 72, 72.1, 72.2 (notice). 



§ 91-7-21. Caveat against probate may be filed. 

Any one desiring to contest a will presented for probate may do so before 
probate by entering in the clerk's office in which it shall be presented his 
objection to the probate thereof, and causing all parties interested and who do 
not join him in such objection to be made parties defendant. Thereupon the 
issue devisavit vel non shall be made up and tried, and proceedings had as in 
other like cases. When an objection to the probate of a will has been made in 
writing, filed with the clerk, probate shall not be had of such will without 
notice to the objector. 

SOURCES: Codes, 1880, § 1970; 1892, § 1815; Laws, 1906, § 1990; Hemingway's 
1917, § 1655; Laws, 1930, § 1608; Laws, 1942, § 504. 

Cross References — Right to renounce will, see §§ 91-5-25 et seq. 
Rights of interested parties to contest will devising real property which is admitted 
to probate as muniment of title only, see § 91-5-35. 



96 



Executors and Administrators 



91-7-21 



JUDICIAL DECISIONS 



1. In general. 

A chancery court did not have jurisdic- 
tion to hear a will contest where the 
executor failed to properly designate the 
beneficiaries as necessary parties, since 
the "interested and necessary parties" 
were not timely noticed and properly 
joined in the lawsuit; the chancellor 
should have joined all necessary and 
proper parties before exercising jurisdic- 
tion. Padron v. Martell, 651 So. 2d 1052 
(Miss. 1995). 

In an action to probate a will, the chan- 
cellor erred in sustaining the executor's 
and beneficiaries' motions to dismiss a 
caveat against probate filed by will contes- 
tants on the ground that the will was not 
contested within 2 years as required by 
§ 91-7-23 where the beneficiaries were 
not listed as interested parties on the 
petition to probate the will, since the ben- 
eficiaries were necessary parties entitled 
to notice of the action. Padron v. Martell, 
651 So. 2d 1052 (Miss. 1995). 

Pleadings filed by the executor and sole 
beneficiary of 1980 will constituted a ca- 
veat against or contest of 1982 will sought 
to be substituted for earlier will for pro- 
bate. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

Where a will has been admitted to pro- 
bate in common form as the last will of a 
testator, it will remain the last will of the 
testator unless (within the time allowed 
by law) it is set aside by an order of the 
chancery court upon a contest and issue 
devisavit vel non. Perry v. Aldrich, 251 
Miss. 429, 169 So. 2d 786 (1964). 

Where contest of a will was filed after 
admission of the will to probate by the 
clerk in vacation without notice to the 
objectors but before such admission was 
approved and confirmed by the court, such 
contest was not filed "before probate" 



within the meaning of this section [Code 
1942, § 504], so as to preclude introduc- 
tion in evidence of the probate of the will 
as prima facie evidence of its validity, in 
the trial of the will contest. Bigleben v. 
Henry, 196 Miss. 586, 17 So. 2d 602 
(1944). 

Entry by the clerk of his order in vaca- 
tion admitting a will to probate is an 
adjudication by him that the instrument 
has been duly proven by the presentation 
thereof with the affidavits of the subscrib- 
ing witnesses thereto attached. Bigleben 
v. Henry, 196 Miss. 586, 17 So. 2d 602 
(1944). 

Probate of a will in common form before 
the clerk in vacation should be deemed 
prima facie evidence of the validity of the 
will unless and until its invalidity shall 
have been determined by the court. 
Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 
602 (1944). 

Where instrument purporting to be a 
will was admitted to probate by the clerk 
in vacation, without notice to the objec- 
tors, and will contest was filed thereafter 
but before approval and confirmation of 
clerk's acts in question, and admission to 
probate was thereafter approved and con- 
firmed over objection of contestants, and 
on subsequent trial of will contest probate 
of the instrument was offered in evidence 
but contestant offered no evidence, pe- 
remptory instruction in favor of proponent 
was correct. Bigleben v. Henry, 196 Miss. 
586, 17 So. 2d 602 (1944). 

Surviving wife, only heir at law, may 
contest husband's will. Woodville v. 
Pizzati, 119 Miss. 442, 81 So. 127 (1919). 

Acquiescence in probate of will in Loui- 
siana, by surviving wife, held not to estop 
her from contesting will in Mississippi. 
Woodville v. Pizzati, 119 Miss. 442, 81 So. 
127 (1919). 



RESEARCH REFERENCES 



ALR. Right of executor or administra- 
tor to contest will codicil of his decedent. 
31A.L.R.2d756. 

Validity and enforceability of agreement 
to drop or compromise will contest or 



withdraw objections to probate, or of 
agreement to induce others to do so. 42 
A.L.R.2d 1319. 

Decedent's spouse as a proper party to 
contest will. 78 A.L.R.2d 1060. 



97 



§ 91-7-23 



Trusts and Estates 



Right of trustee named in earlier will to 
contest, or seek to revoke probate of, later 
will. 94 A.L.R.2d 1409. 

Estoppel to contest will or attack its 
validity by acceptance of benefits thereun- 
der. 78 A.L.R.4th 90. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 742 et 
seq., 780. 

25 Am. Jur. PI & Pr Forms (Rev), Wills, 



Forms 241 et seq. (opposition and con- 
test). 

5 Am. Jur. Legal Forms 2d, Compromise 
and Settlement § 63:201 (pending will 
contest). 

9 Am. Jur. Trials, Will Contests, §§ 1 et 
seq. 

CJS. 95 C.J.S., Wills §§ 477, 478, 480- 
489, 512 et seq. 



§ 91-7-23. Validity contested within two years. 

Any person interested may, at any time within two years, by petition or 
bill, contest the validity of the will probated without notice; and an issue shall 
be made up and tried as other issues to determine whether the writing 
produced be the will of the testator or not. If some person does not appear 
within two years to contest the will, the probate shall be final and forever 
binding, saving to infants and persons of unsound mind the period of two years 
to contest the will after the removal of their respective disabilities. In case of 
concealed fraud, the limitation shall commence to run at, and not before, the 
time when such fraud shall be, or with reasonable diligence might have been, 
first known or discovered. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (29); 1857, ch. 60, art. 43; 
1871, § 1099; 1880, § 1961; 1892, § 1822; Laws, 1906, § 1997; Hemingway's 
1917, § 1662; Laws, 1930, § 1609; Laws, 1942, § 505. 

Cross References — Rights of interested parties to contest will devising real 
property which is admitted to probate as muniment of title only, see § 91-5-35. 
Criminal offense of alteration, destruction, or secretion of wills, see § 97-9-77. 
Criminal offense of forgery of will, see § 97-21-63. 

JUDICIAL DECISIONS 



1. Construction and application in gen- 

eral. 

2. Who may contest, or procure con- 

struction of, will. 

3. Issues which may be submitted or 

considered at same time. 

4. Concealed fraud. 

1. Construction and application in 
general. 

In an action to probate a will, the chan- 
cellor erred in sustaining the executor's 
and beneficiaries' motions to dismiss a 
caveat against probate filed by will contes- 
tants on the ground that the will was not 
contested within 2 years as required by 
§ 91-7-23 where the beneficiaries were 
not listed as interested parties on the 



petition to probate the will, since the ben- 
eficiaries were necessary parties entitled 
to notice of the action. Padron v. Martell, 
651 So. 2d 1052 (Miss. 1995). 

The failure to join known interested 
parties within 2 years from the date of 
probate of a will did not require dismissal 
of a petition to contest the will; treatment 
of the "persons interested" as necessary 
parties would be governed by Rules 19 
and 21, Miss. R. Civ. P., and therefore the 
chancery court was required to make the 
interested persons parties and process is- 
sue accordingly. Schneider v. Schneider, 
585 So. 2d 1275 (Miss. 1991). 

The word "probate" within the meaning 
of § 91-7-23 refers to the act of the clerk 



98 



Executors and Administrators 



§ 91-7-23 



accepting the will for probate, rather than 
the date upon which the estate closed and, 
therefore, the 2-year limitations period 
runs from the date the clerk admits the 
will to probate. In re Will of Fields, 570 So. 
2d 1202 (Miss. 1990). 

Attempt to contest will was unseason- 
able where, while chancery court was in 
vacation, chancery clerk on January 24, 
1983, admitted will and codicils to pro- 
bate, thereafter issuing Letters Testamen- 
tary; on June 13, 1983, chancellor entered 
order ratifying actions by chancery clerk 
conducted while court was in vacation; 
and, action to set aside will alleging men- 
tal incompetency when making will was 
commenced on May 6, 1985. Sims v. 
Stennis, 510 So. 2d 798 (Miss. 1987). 

The sole issue in a will contest is 
devisavit vel non, or will or no will. Trotter 
v. Trotter, 490 So. 2d 827 (Miss. 1986). 

In an action by a devisee under a 1935 
will to perfect his title in certain realty, 
the trial court correctly dismissed the 
pending proceedings upon the motion of 
such devisee, even though a contest of the 
will had been filed, where it was discov- 
ered that the original will had been admit- 
ted to probate in 1937 and where the 
contestants made no attempt to come 
within the exceptions to the two-year stat- 
ute of limitations for will contests. In re 
Will of Hickman, 374 So. 2d 239 (Miss. 
1979). 

Under Code 1972 § 11-5-3, § 91-7-23, 
and § 91-7-29, prescribing will contest 
procedures, trial judge erred in directing 
verdict in favor of proponents of will on 
issue of testamentary capacity and undue 
influence, since roll of jury in will contest 
is same as that of jury in civil trial in court 
of law and is not "merely advisory." Fowler 
v. Fisher, 353 So. 2d 497 (Miss. 1977). 

Under former provisions, it was held 
that in a proceeding on a petition for 
probate of a will and revocation of a will 
previously probated by the defendants, 
where the plaintiff had filed a petition 
within the two-year statute of limitations 
but did not request service of process to 
issue until after the limitation period, the 
suit was barred by limitations, since to 
constitute "legal filing" of the suit, so as to 
toll the statute of limitations, the presen- 
tation of the bill or petition to the clerk 



must be followed by the issuance of pro- 
cess in the normal and usual manner 
without undue delay. Knuckles v. Wells, 
222 So. 2d 660 (Miss. 1969), overruled on 
other grounds, Estate v. Schneider, 585 
So. 2d 1275 (Miss. 1991). 

Where a will has been admitted to pro- 
bate in common form as the last will of a 
testator, it will remain the last will of the 
testator unless within the time allowed by 
law it is set aside by an order of the 
chancery court upon a contest and issue 
devisavit vel non. Perry v. Aldrich, 251 
Miss. 429, 169 So. 2d 786 (1964). 

In the contest of a will, the burden was 
on the proponent to prove the validity of 
the will, i.e., that the testator had mental 
capacity to make it, and that he was not 
procured to make it by the pressure of 
undue influence upon him, and this bur- 
den was met by the introduction of evi- 
dence that the will had been duly admit- 
ted to probate. O'Bannon v. Henrich, 191 
Miss. 815, 4 So. 2d 208 (1941). 

The admission of a will to probate was 
only prima facie evidence of its validity 
and would not conclude the heirs at law as 
interested parties from contesting will 
within two years in manner prescribed by 
statute, where the heirs at law had not 
been made parties to the petition for the 
probate thereof. Austin v. Patrick, 179 
Miss. 718, 176 So. 714 (1937). 

Contest as to the validity of a will pro- 
bated without notice must be brought in 
the court in which the will was probated, 
the contest being merely supplementary 
to and a continuation of, the probate pro- 
ceedings, and, accordingly, the contest is 
not maintainable in federal courts. In re 
Armistead's Estate, 4 F. Supp. 606 (S.D. 
Miss. 1933). 

Parties seeking to set aside will as forg- 
ery have burden of showing forgery by 
clear and convincing pleading, and evi- 
dence. Didlake v. Ellis, 158 Miss. 816, 131 
So. 267 (1930). 

2. Who may contest, or procure con- 
struction of, will. 

Putative illegitimate children were not 
interested persons because they failed to 
establish any right to inherit as 
illegitimates, therefore, they lacked 
standing to contest the last will and tes- 



99 



§ 91-7-23 



Trusts and Estates 



tament of the decedent. Parks v. Mathis, 
800 So. 2d 119 (Miss. Ct. App. 2001). 

A will contestant who alleged that she 
was the only natural child and heir at law 
of the decedent had standing to contest 
the will, even though she would take more 
under the will than she would without it 
under her existing status, since her status 
could change pending the hearing on heir- 
ship, and she would take more without the 
will than under the will if she was found 
to be the sole heir at law. Dees v. Estate of 
Moore, 562 So. 2d 109 (Miss. 1990). 

A widow could not contest her husband's 
will more than two years after it was 
probated, notwithstanding her contention 
that she was lulled into refraining from 
contesting it by promises of the testator's 
children to take care of her and to let her 
share in the estate. Rush v. Rush, 360 So. 
2d 1240 (Miss. 1978). 

Children of deceased, who entered into 
agreement with their father not to inter- 
fere with his plans as to the future or to 
make any claim on other property of dece- 
dent, in return for gift of property, were 
not barred from subsequently contesting 
will where the chancellor found that the 
agreement was lacking in certainty as to 
the purpose and extent of the waiver. 
Ward v. Ward, 203 Miss. 32, 33 So. 2d 294 
(1948). 

An administrator is not such an "inter- 
ested party" within statutes providing 
that a proponent may make all interested 
persons parties to application for probate 
of will and that any interested person may 
at any time within two years contest va- 
lidity of will probated without notice, as is 
authorized to contest will subsequently 
presented for probate. Austin v. Patrick, 
179 Miss. 718, 176 So. 714 (1937). 

Parties having no interest in property 
devised under will admitted to probate 
cannot complain of forgery or fraud of 
person beneficially interested. Didlake v. 
Ellis, 158 Miss. 816, 131 So. 267 (1930). 

Bill seeking to revoke probate of will for 
forgery and fraud, not snowing complain- 
ants were interested parties nor essential 
requisites to probate of destroyed will, 
held insufficient. Didlake v. Ellis, 158 
Miss. 816, 131 So. 267 (1930). 

Administrator may not contest will sub- 
sequently presented for probate. Cajoleas 



v. Attaya, 145 Miss. 436, 111 So. 359, 58 
A.L.R. 1457 (1927). 

Complainant having no interest subject 
to enforcement in equity cannot secure 
construction of will. Orman v. Hall, 91 So. 
273 (Miss. 1922). 

A person who takes more under a will 
than he would as heir cannot contest the 
validity of the will. Biles v. Dean, 14 So. 
536 (Miss. 1893). 

3. Issues which may be submitted or 

considered at same time. 

A party may combine a suit to deter- 
mine heirship with a suit to contest a will. 
Dees v. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 

Whether writing produced is testator's 
will is sole question to be determined on 
issue of devisavit vel non, and questions 
as to construction, sufficiency of identifi- 
cation of beneficiaries, and description of 
property devised cannot be considered. 
Kinard v. Whites, 175 Miss. 480, 167 So. 
636 (1936). 

If the interest or heirship of the contes- 
tants be denied, that issue should be de- 
termined before the issue as to the valid- 
ity of the will; and a submission of both 
issues to the same jury is erroneous. 
Edwards v. Gaulding, 38 Miss. 118 (1859). 

4. Concealed fraud. 

A will contest initiated by the daughter 
of a predeceased son of the decedent, in 
which she alleged that she was inadver- 
tently omitted from the will, was time- 
barred where it was not commenced 
within two years, notwithstanding her 
contention that the executrix and the at- 
torney for the estate intentionally misled 
her by stating that she did not need to 
worry because there was no objection to 
her and her siblings receiving a share of 
the estate since she knew from almost the 
moment the will was offered for probate 
that she was not included in the estate 
and the probate of the estate was not 
hidden from her. Williams v. Estate of 
Winding, 783 So. 2d 707 (Miss. 2001). 

"Concealed fraud," within statute ex- 
tending time for contesting validity of will 
probated without notice, is designed fraud 
by which party knowing to whom right 
belongs conceals circumstances giving 
that right, thereby enabling himself to 



100 



Executors and Administrators 



§ 91-7-25 



enter and hold. Wilson v. Wilson, 166 
Miss. 369, 146 So. 855 (1933). 

Where plaintiffs knew from beginning 
facts which would have avoided will, but 
testator's widow promised them she 
would make division of property and after 
two years expired repudiated promise, 
there was no "concealed fraud" extending 



time for contesting validity of will. Wilson 
v. Wilson, 166 Miss. 369, 146 So. 855 
(1933). 

Estoppel could not operate to prevent 
defendant from pleading statute of limita- 
tions applying to will contest, which set up 
its own exceptions. Wilson v. Wilson, 166 
Miss. 369, 146 So. 855 (1933). 



RESEARCH REFERENCES 



ALR. Provision of will for forfeiture in 
case of contest, as applied to contest by 
one not a beneficiary. 7 A.L.R.2d 1357. 

Instructions, in will contest, denning 
natural objects of testator's bounty. 11 
A.L.R.2d 731. 

Validity and enforceability of agreement 
to drop or compromise will contest or 
withdraw objections to probate, or of 
agreement to induce others to do so. 42 
A.L.R.2d 1319. 

Decedent's spouse as a proper party to 
contest will. 78 A.L.R.2d 1060. 

Wills: challenge in collateral proceeding 
to decree admitting will to probate, on 



ground of fraud inducing complainant not 
to resist probate. 84 A.L.R.3d 1119. 

Modern status: inheritability or de- 
scendability of right to contest will. 11 
A.L.R.4th 907. 

Word "child" or "children" in will as 
including grandchild or grandchildren. 30 
A.L.R.4th 319. 

Fraud as extending statutory limita- 
tions period for contesting will or its pro- 
bate. 48 A.L.R.4th 1094. 

Sufficiency of evidence to support grant 
of summary judgment in will probate or 
contest proceedings. 53 A.L.R.4th 561. 



§ 91-7-25. Necessary parties to contest. 

In any proceeding to contest the validity of a will, all persons interested in 
such contest shall be made parties. 

SOURCES: Codes, 1880, § 1968; 1892, § 1823; Laws, 1906, § 1998; Hemingway's 
1917, § 1663; Laws, 1930, § 1610; Laws, 1942, § 506. 

JUDICIAL DECISIONS 



1. In general. 

A chancery court did not have jurisdic- 
tion to hear a will contest where the 
executor failed to properly designate the 
beneficiaries as necessary parties, since 
the "interested and necessary parties" 
were not timely noticed and properly 
joined in the lawsuit; the chancellor 
should have joined all necessary and 
proper parties before exercising jurisdic- 
tion. Padron v. Martell, 651 So. 2d 1052 
(Miss. 1995). 

In an action to probate a will, the chan- 
cellor erred in sustaining the executor's 
and beneficiaries' motions to dismiss a 
caveat against probate filed by will contes- 
tants on the ground that the will was not 
contested within 2 years as required by 



§ 91-7-23 where the beneficiaries were 
not listed as interested parties on the 
petition to probate the will, since the ben- 
eficiaries were necessary parties entitled 
to notice of the action. Padron v. Martell, 
651 So. 2d 1052 (Miss. 1995). 

The failure to join known interested 
parties within 2 years from the date of 
probate of a will did not require dismissal 
of a petition to contest the will; treatment 
of the "persons interested" as necessary 
parties would be governed by Rules 19 
and 21, Miss.R.Civ.P, and therefore the 
chancery court was required to make the 
interested persons parties and process is- 
sue accordingly. Schneider v. Schneider, 
585 So. 2d 1275 (Miss. 1991). 

All legatees are indispensable parties to 



101 



§ 91-7-27 



Trusts and Estates 



a will contest. Moore v. Jackson, 247 Miss. 
854, 157 So. 2d 785 (1963). 

Proponent's failure to plead nonjoinder 
of necessary parties to will contest does 
not waive the objection. Moore v. Jackson, 
247 Miss. 854, 157 So. 2d 785 (1963). 

Heirs at law who would take property of 
the deceased in the absence of a valid will 
are necessary parties. Provenza v. 
Provenza, 201 Miss. 836, 29 So. 2d 669 
(1947). 

Once the court has acquired jurisdiction 
of all interested parties, jurisdiction is not 
lost by the withdrawal of an answer filed 
on behalf of one of the defendants by one 
duly authorized to make such filing. 
Provenza v. Provenza, 201 Miss. 836, 29 
So. 2d 669 (1947). 



In suit to confirm title to land, seeking 
construction of will to effect that it did not 
convey title to the land because it was 
devised to no named legatees, all the ben- 
eficiaries should have been under valid 
process. Dorsey v. Sullivan, 199 Miss. 602, 
24 So. 2d 852 (1946). 

All "interested parties," or those whose 
interest detrimentally affected by will, are 
necessary parties to will contest; heirs at 
law who would take property but for will, 
are interested parties; where contestants 
rely on prior will, all beneficiaries therein 
are interested parties; all beneficiaries in 
intermediate will are necessary parties in 
will contest. Hoskins v. Holmes County 
Community Hosp., 135 Miss. 89, 99 So. 
570 (1924). 



RESEARCH REFERENCES 



ALR. Standing of legatee or devisee 
under alleged prior or subsequent will to 
oppose probate or contest will. 39 A.L.R.3d 
321. 

Right of heir's assignee to contest will. 
39 A.L.R.3d 696. 

Estoppel to contest will or attack its 
validity by acceptance of benefits thereun- 
der. 78 A.L.R.4th 90. 



What constitutes contest or attempt to 
defeat will within provision thereof for- 
feiting share of contesting beneficiary. 3 
A.L.R.5th 590. 

Am Jur. 79 Am. Jur. 2d, Wills §§ 776 et 
seq. 



§ 91-7-27. Probate of will prima facie evidence. 

On the trial of an issue made up to determine the validity of a will which 
has been duly admitted to probate, such probate shall be prima facie evidence 
of the validity of the will. 

SOURCES: Codes, 1880, § 1969; 1892, § 1824; Laws, 1906, § 1999; Hemingway's 
1917, § 1664; Laws, 1930, § 1611; Laws, 1942, § 507. 

JUDICIAL DECISIONS 



1. In general. 

2. Construction. 

3. Particular applications. 

1. In general. 

The probation of 1980 will in common 
form and its admission to probate created 
prima facie evidence that the will was 
valid. Trotter v. Trotter, 490 So. 2d 827 
(Miss. 1986). 

The probate of a will in common form is 
not a final adjudication of its validity but 



is an "incipient step" necessary to enable 
the court to proceed to carry the will into 
execution, and it is not conclusive against 
heirs and distributees, and if they desire 
to contest the validity of the will this shall 
be done by an issue devisavit vel non. 
Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 
786 (1964). 

2. Construction. 

This section [Code 1942, § 507] must be 
read together with Code 1942, § 501. Gib- 



102 



Executors and Administrators 



§ 91-7-29 



son v. Jones, 238 Miss. 186, 117 So. 2d 879 
(1960). 

3. Particular applications. 

A will is not shown to have been duly 
admitted to probate in common form, by a 
record which fails to show compliance 
with Code 1942, § 501 and makes no 
attempt to excuse such noncompliance. 
Gibson v. Jones, 238 Miss. 186, 117 So. 2d 
879 (1960). 

In a will contest, proof of the probate is 
all that is required of proponents initially 
in meeting the burden of proof resting 
upon them. Wallace v. Harrison, 218 Miss. 
153, 65 So. 2d 456 (1953). 

In a will contest, a prima facie case was 
made by proponents by introduction of the 
proof of probate in common form and this 
extends to every aspect of the will touch- 
ing upon its validity and without more, 
the proponents have introduced sufficient 
evidence to sustain their burden. Bearden 
v. Gibson, 215 Miss. 218, 60 So. 2d 655 
(1952). 

In a will contest where proponents in- 
troduced a record of probate of will in 
common form, it was not necessary that 
they go further and make proof of will by 
having one of subscribing witnesses 
present to testify. Bearden v. Gibson, 215 
Miss. 218, 60 So. 2d 655 (1952). 

Probate of will in common form before 
chancery clerk in vacation is prima facie 
evidence of validity of will until will is 
declared invalid and set aside by proper 
and lawful proceeding in proper court, 
having jurisdiction of subject matter and 
of parties in interest. Rice v. McMullen, 
207 Miss. 706, 43 So. 2d 195 (1949). 



Probate of a will in common form before 
the clerk in vacation should be deemed 
prima facie evidence of the validity of the 
will unless and until its invalidity shall 
have been determined by the court. 
Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 
602 (1944). 

Entry by the clerk of his order in vaca- 
tion admitting a will to probate is an 
adjudication by him that the instrument 
has been duly proven by the presentation 
thereof with the affidavits of the subscrib- 
ing witnesses thereto attached. Bigleben 
v. Henry, 196 Miss. 586, 17 So. 2d 602 
(1944). 

In a will contest after probate, propo- 
nents of a will, executed in Texas, were not 
required to make proof of the validity of 
the will by having the subscribing wit- 
nesses present to testify, or their testi- 
mony in the form of depositions, and a 
prima facie case of the validity of the will 
was properly made out by introducing the 
probate of the will in common form by the 
affidavits of the subscribing witnesses 
who resided in Texas. Hilton v. Johnson, 
194 Miss. 671, 12 So. 2d 524 (1943). 

In the contest of a will, the burden was 
on the proponent to prove the validity of 
the will, i.e., that the testator had mental 
capacity to make it, and that he was not 
procured to make it by the pressure of 
undue influence upon him, and this bur- 
den was met by the introduction of evi- 
dence that the will had been duly admit- 
ted to probate. O'Bannon v. Henrich, 191 
Miss. 815, 4 So. 2d 208 (1941). 



RESEARCH REFERENCES 



ALR. Probate of copy of last will 
as precluding later contest of will under 
doctrine of res judicata. 55 A.L.R.3d 
755. 



Am Jur. 80 Am. Jur. 2d, Wills §§ 828 et 
seq. 
CJS. 95 C.J.S., Wills §§ 578 et seq. 



§ 91-7-29. Trial of issue devisavit vel non. 

On the trial of such issue, the proponent of the will shall have the 
affirmative of the issue and be entitled to all the rights of one occupying such 
position. The witnesses shall be examined orally before the jury, except where 
in the circuit court depositions would be admissible; and the testimony taken 



103 



§ 91-7-29 



Trusts and Estates 



on the probate of the will shall be admissible if the witnesses who delivered it 
be dead, out of the state, or have since become incompetent. 

SOURCES: Codes, 1880, § 1971; 1892, § 1825; Laws, 1906, § 2000; Hemingway's 
1917, § 1665; Laws, 1930, § 1612; Laws, 1942, § 508. 

Cross References — Appeals in matters testamentary, see §§ 11-51-3, 11-51-9. 

JUDICIAL DECISIONS 



Burden of proof. 

Admissibility and sufficiency of evi- 
dence. 

— Proof of incapacity or undue influ- 
ence. 

Competency of witnesses. 

Miscellaneous. 



1. Burden of proof. 

The proponent of a will at all times 
bears the burden of persuading the trier of 
fact on all issues requisite to the validity 
of the will, e.g., due execution and testa- 
mentary capacity. At the outset, the pro- 
ponent bears the burden of producing ev- 
idence of due execution and testamentary 
capacity. This burden is conventionally 
met by offering the will itself, the affida- 
vits of subscribing witnesses and the judg- 
ment admitting the will to probate; these 
offerings make out the proponent's prima 
facie case. Once the proponent has shoul- 
dered his or her burden of production such 
that he or she has made out a prima facie 
case, the burden of production shifts to the 
contestants. The burden of persuading the 
trier of fact on the issues of due execution 
and testamentary capacity rests on the 
proponent throughout and never shifts to 
the contestants; that burden of persuasion 
is subject to the preponderance of the 
evidence standard. Clardy v. National 
Bank of Commerce, 555 So. 2d 64 (Miss. 
1989). 

The burden of proof of a proponent of a 
will is met by the offering and receipt into 
evidence of the will and the record of its 
probate and a prima facie case is made by 
the proponent solely by this proof; the 
contestants then must offer proof to over- 
come such prima facie case and although 
the burden of proof is still with the propo- 
nent, the burden of going forward with 
proof of undue influence or lack of testa- 
mentary capacity, or other defenses, shifts 



to the contestants. Harris v. Sellers, 446 
So. 2d 1012 (Miss. 1984), overruled on 
other grounds, Mullins v. Ratcliff, 515 So. 
2d 1183 (Miss. 1987). 

In a will contest an instruction for the 
proponents that the material inquiry was 
the capacity of a testator on the very day 
and at the very time of the execution of 
the instrument, properly informed the 
jury of the issue, and was not invalidated 
by additional language to the effect that 
such was true regardless of what the jury 
might think or believe as to the mental 
capacity of the testator at any other time. 
Sides v. Adams, 243 So. 2d 59 (Miss. 1971). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, there is but a single 
issue-will or no will, and burden is no 
proponent throughout. Blalock v. Magee, 
205 Miss. 209, 38 So. 2d 708 (1949). 

In cases where a too close issue of fact is 
involved, instructions on burden of proof 
should go no further than to advise jury 
that proponent of will or plaintiff in other 
civil cases is required to establish issue by 
preponderance of evidence. Blalock v. 
Magee, 205 Miss. 209, 38 So. 2d 708 
(1949). 

In will contest on ground of mental 
incapacity and undue influence, instruc- 
tions are not prejudicially erroneous if, 
when all of instructions are considered as 
whole, jury is correctly informed that bur- 
den resting upon proponents is to show 
testamentary capacity and lack of undue 
influence by preponderance of evidence, 
although two of instructions given were to 
effect that burden of proof is upon propo- 
nents of will to show by preponderance of 
evidence that alleged testatrix was at 
time of execution of alleged will of sound 
and disposing mind and that if jury finds 
burden has not been met and that it is left 
uncertain and doubtful whether testatrix 



104 



Executors and Administrators 



§ 91-7-29 



was of sound mind then jury should find 
for contestants. Blalock v. Magee, 205 
Miss. 209, 38 So. 2d 708 (1949). 

Instruction that probating of will was 
prima facie evidence of its validity, and 
that burden of proving forgery thereof was 
on contestant, held erroneous. Ellis v. 
Ellis, 160 Miss. 345, 134 So. 150 (1931). 

Error in placing on contestant burden of 
proving will was forgery held not cured by 
instruction that burden was on proponent 
to prove signature was genuine. Ellis v. 
Ellis, 160 Miss. 345, 134 So. 150 (1931). 

In suit to probate a will, and to cancel 
the probate of prior wills, the burden of 
proof was on complainant. Mims v. John- 
son, 129 Miss. 403, 92 So. 577 (1922). 

2. Admissibility and sufficiency of ev- 

idence. 

When attesting witnesses deny execu- 
tion or fail to testify, secondary evidence 
may be introduced by proponents of the 
will. Ward v. Ward, 124 Miss. 697, 87 So. 
153 (1921). 

The proponents on an issue devisavit 
vel non may introduce evidence in rebut- 
tal of that offered by contestants. Sheehan 
v. Kearney, 82 Miss. 688, 21 So. 41 (1896). 

3. — Proof of incapacity or undue in- 

fluence. 

A daughter overcame the presumption 
of undue influence arising from her fa- 
ther's execution of a will leaving her x /i of 
his estate to the exclusion of a friend and 
charitable organizations where the father 
had told 2 totally disinterested witnesses 
that he wanted to change his will, the will 
was executed openly at a medical center in 
the presence of the 2 subscribing wit- 
nesses and medical personnel, and there 
was evidence that the father understood 
the extent and value of his assets and was 
rational, strong-willed, and independent 
up until the time of his death. Pallatin v. 
Jones, 638 So. 2d 493 (Miss. 1994). 

The test for rebutting a presumption of 
undue influence has been modified and no 
longer requires the independent advice of 
a competent person, but instead requires 
a showing of the grantor's "independent 
consent and action." Marsalis v. Lehmann, 
566 So. 2d 217 (Miss. 1990). 

Evidence that testator of advanced 
years living in nursing home was depen- 



dent upon beneficiary to some degree is 
insufficient basis for finding of confiden- 
tial relationship resulting in will being 
product of undue influence where there is 
no proof that testator looked to beneficiary 
to care for personal needs, to tend to him, 
or to handle his affairs. Varvaris v. 
Kountouris, 477 So. 2d 273 (Miss. 1985). 

In an action contesting a will there is a 
presumption of undue influence that the 
law imposes where a confidential or fidu- 
ciary relationship exists. Harris v. Sellers, 
446 So. 2d 1012 (Miss. 1984), overruled on 
other grounds, Mullins v. Ratcliff, 515 So. 
2d 1183 (Miss. 1987). 

In a proceeding devisavit vel non involv- 
ing a will which was challenged on the 
ground of lack of testamentary capacity 
and of undue influence, the submission to 
jury of both issues was error where the 
evidence as to undue influence was insuf- 
ficient. In re Alexander's Will, 221 Miss. 
478, 73 So. 2d 172 (1954). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, general verdict of jury on 
issue of whether or not proponents have 
shown by preponderance of evidence both 
testamentary capacity and lack of undue 
influence at time of execution of will 
should be sustained if proponents fail to 
prove either or both of these necessary 
requirements. Blalock v. Magee, 205 Miss. 
209, 38 So. 2d 708 (1949). 

In will contest on ground of lack of 
testamentary capacity and existence of 
undue influence, it should be assumed 
that general verdict of jury against valid- 
ity of will was on ground of want of testa- 
mentary capacity which was amply sup- 
ported by evidence, where proof was 
insufficient to sustain verdict on ground of 
undue influence. Blalock v. Magee, 205 
Miss. 209, 38 So. 2d 708 (1949). 

As to undue influence testator's decla- 
rations at time of execution of will admis- 
sible as res gestae. Sanders v. Sanders, 
126 Miss. 610, 89 So. 261 (1921). 

Instruction on "undue influence" omit- 
ting element of destruction of free agency, 
is erroneous. Scally v. Wardlaw, 123 Miss. 
857, 86 So. 625 (1920). 

Where evidence will not support a find- 
ing of incapacity, peremptory instruction 
for proponent proper. Scally v. Wardlaw, 
123 Miss. 857, 86 So. 625 (1920). 



105 



§ 91-7-31 



Trusts and Estates 



On an issue devisavit vel non, where the 
question is as to the sanity of the testator, 
the contestants are not required to prove 
his insanity beyond all reasonable doubt. 
King v. Rowan, 82 Miss. 1, 34 So. 325 
(1903). 

Upon an issue devisavit vel non, an 
instruction for contestants is erroneous if 
it authorizes the jury, without qualifica- 
tion or limitation, to consider the reason- 
ableness or unreasonableness of the will. 
King v. Rowan, 82 Miss. 1, 34 So. 325 
(1903). 

4. Competency of witnesses. 

Lay witnesses are competent to testify 
on issue of capacity of testator to make 
will on date of its alleged execution where 
they first give facts upon which their opin- 
ions are based. Blalock v. Magee, 205 
Miss. 209, 38 So. 2d 708 (1949). 

At the trial of an issue devisavit vel non, 
the contestant, or the proponent, although 
the personal legatee, can testify in sup- 
port of the will. Tucker v. Whitehead, 59 
Miss. 594 (1882). 

5. Miscellaneous. 

A breach of a contract not to revoke a 
will is not grounds for contesting the will 
pertaining to the contract. Trotter v. Trot- 
ter, 490 So. 2d 827 (Miss. 1986). 



Party who desires jury to try issue of 
devisavit vel non is under duty to specifi- 
cally request jury before hearing on mat- 
ter. Varvaris v. Kountouris, 477 So. 2d 273 
(Miss. 1985). 

Under Code 1972 § 11-5-3, § 91-7-23, 
and § 91-7-29, prescribing will contest 
procedures, trial judge erred in directing 
verdict in favor of proponents of will on 
issue of testamentary capacity and undue 
influence, since roll of jury in will contest 
is same as that of jury in civil trial in court 
of law and is not "merely advisory." Fowler 
v. Fisher, 353 So. 2d 497 (Miss. 1977). 

The probate of a will in common form is 
not a final adjudication of its validity but 
is an "incipient step" necessary to enable 
the court to proceed to carry the will into 
execution, and it is not conclusive against 
heirs and distributees, and if they desire 
to contest the validity of the will this shall 
be done by an issue devisavit vel non. 
Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 
786 (1964). 

On trial of devisavit vel non after pro- 
bate of will and record of probate proceed- 
ings, failure to submit such record to the 
jury was reversible error. Edgington v. 
Mabry, 111 Miss. 492, 71 So. 801 (1916). 



RESEARCH REFERENCES 



ALR. Estoppel to contest will or attack 
its validity by acceptance of benefits 
thereunder. 28 A.L.R.2d 116. 

Alzheimer's disease as affecting testa- 
mentary capacity. 47 A.L.R.5th 523. 



Am Jur. 80 Am. Jur. 2d, Wills §§ 894 et 
seq. 

CJS. 95 C.J.S., Wills §§ 639 et seq. 



§ 91-7-31. Wills recorded. 

All original wills, after probate thereof, shall be recorded and remain in 
the office of the clerk of the court where they were proved, except during the 
time they may be removed to any other court under proper process, from which 
they shall be duly returned to the proper office. Authenticated copies of such 
wills may be recorded in any county in this state. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (23); 1857, ch. 60, art. 48; 
1871, § 1004; 1880, § 1975; 1892, § 1828; Laws, 1906, § 2003; Hemingway's 
1917, § 1668; Laws, 1930, § 1613; Laws, 1942, § 509. 

Cross References — Criminal offense of forgery of record of will, see § 97-21-45. 



106 



Executors and Administrators 



§ 91-7-33 



JUDICIAL DECISIONS 



1. In general. 

Under the provisions of Code 1972 § 91- 
7-33, the original will of a non-resident 
testatrix was properly probated in this 
state, and this section prohibited with- 
drawal of the original will for transfer to 
another state. Crum v. First Nat'l Bank, 
321 So. 2d 287 (Miss. 1975), cert, denied, 
439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 
195 (1978). 

Court may take notice of fact that it has 
not been the practice to record domestic 
wills in counties other than that of origi- 
nal probate. Federal Land Bank v. 
Newsom, 175 Miss. 114, 161 So. 864 
(1935), adhered to, 175 Miss. 131, 166 So. 
345 (1936). 



Statute providing that authenticated 
copies of wills may be recorded in any 
county is not mandatory. Federal Land 
Bank v. Newsom, 175 Miss. 114, 161 So. 
864 (1935), adhered to, 175 Miss. 131, 166 
So. 345 (1936). 

Domestic will when probated and re- 
corded in county in which testator resided 
at time of death constituted notice 
throughout state to subsequent mort- 
gagee of land in Mississippi devised by 
will, without necessity of recording will in 
county wherein land was situated. Fed- 
eral Land Bank v. Newsom, 175 Miss. 114, 
161 So. 864 (1935), adhered to, 175 Miss. 
131, 166 So. 345 (1936). 



§ 91-7-33. Foreign wills recorded. 

Authenticated copies of wills proven according to the laws of any of the 
states of the union, of the territories, of the District of Columbia, or of any 
foreign country, and affecting or disposing of property within this state, may be 
admitted to probate in the proper court. Such will may be contested as the 
original might have been if it had been executed in this state, or the original 
will may be proven and admitted to record here. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (25); 1857, ch. 60, art. 49; 
1871, § 1105; 1880, § 1976; 1892, § 1829; Laws, 1906, § 2004; Hemingway's 
1917, § 1669; Laws, 1930, § 1614; Laws, 1942, § 510. 



Cross References 

§ 91-7-89. 



Revocation of letters testamentary granted to nonresident, see 



JUDICIAL DECISIONS 



1. In general. 

Mississippi courts may intervene when 
disposition of decedent's interests involve 
property interests which are subject to its 
jurisdiction. Davis v. Davis, 507 So. 2d 24 
(Miss. 1987). 

Under the provisions of this section, the 
original will of a non-resident testatrix 
was properly probated in this state, and 
Code 1972 § 91-7-31 prohibited the with- 
drawal of the original will for transfer to 
another state. Crum v. First Nat'l Bank, 
321 So. 2d 287 (Miss. 1975), cert, denied, 
439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 
195 (1978). 



Having properly assumed jurisdiction of 
the will of a non-resident testatrix, the 
Mississippi court was not required by co- 
mity to defer to the courts of the domicil- 
iary state on the issue of which of the 
parties should bear the burden of the 
estate taxes and other debts of the estate. 
Crum v. First Nat'l Bank, 321 So. 2d 287 
(Miss. 1975), cert, denied, 439 U.S. 883, 99 
S. Ct. 223, 58 L. Ed. 2d 195 (1978). 

Beneficiary's acquiescence in probate 
proceedings in Louisiana held not to estop 
him from seeking annulment of proceed- 
ings in Mississippi under certified copy of 
Louisiana proceedings. Gilmore v. Gil- 



107 



§ 91-7-35 Trusts and Estates 

more, 144 Miss. 424, 110 So. Ill (1926). Mississippi court. Woodville v. Pizzati, 119 

Will of nonresident devising property Miss. 442, 81 So. 127 (1919). 
within state may be probated in first in- All rights derived through a will insofar 
stance in county where situated. Bolton as it affects property situated in this state 
v. Barnett, 131 Miss. 802, 95 So. 721 are governed by Mississippi law. Heard v. 
(1923). Drennen, 93 Miss. 236, 46 So. 243 (1908). 
Foreign will ineffective as conveyance The probate of an authenticated copy 
until probated, when it relates back; pur- does not authorize an executor to main- 
chaser with notice of will takes subject to tain an ejectment without taking out let- 
probate. Belt v. Adams, 125 Miss. 387, 87 ters in this state. Sims v. Walden, 65 Miss. 
So. 666 (1921). 211, 3 So. 457 (1887); Pratt v. Hargraves, 
Judgment of Louisiana court establish- 77 Miss. 892, 28 So. 722, 78 Am. St. R. 551 
ing instrument as will, not conclusive on (1900). 

RESEARCH REFERENCES 

ALR. Probate, in state where assets are Law Reviews. 1987 Mississippi Su- 

found, of will of nonresident which has not preme Court Review, Wills and estates. 57 

been admitted to probate in state of domi- Miss. L. J. 542, August, 1987. 
cil. 20 A.L.R.3d 1033. 

§ 91-7-35. Grant of letters testamentary. 

The executor named in any last will and testament, whether made in this 
state or out of it and admitted to probate here on an authenticated copy or on 
the original, shall be entitled to letters testamentary thereon if not legally 
disqualified. A person shall not be capable of being executor who, at the time 
when letters testamentary ought to be granted, is under the age of eighteen 
years, of unsound mind, or convicted of a felony. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (25); 1857, ch. 60, art. 50; 
1871, § 1106; 1880, § 1978; 1892, § 1831; Laws, 1906, § 2006; Hemingway's 
1917, § 1671; Laws, 1930, § 1615; Laws, 1942, § 511. 

Cross References — Recording of letters testamentary by chancery clerk, see 
§ 9-5-137. 

Grant of letters testamentary by chancery clerk, see § 9-5-141. 
Power of bank to act as executor or administrator, see § 81-5-33. 
Accounts of fiduciaries in savings associations, see § 81-12-139. 
Persons disqualified to administer estate, see § 91-7-65. 
Appointment of testamentary guardian, see § 93-13-7. 

JUDICIAL DECISIONS 

1. In general. Where foreign will is probated on au- 

Executor or administrator is regarded thenticated copy, the court should appoint 

as officer of court subject to direction, executors named therein if not disquali- 

supervision and control of court until es- fied under the laws of Mississippi, 

tate is closed and he is finally discharged, whether or not they are disqualified in the 

Bailey v. Sayle, 206 Miss. 757, 40 So. 2d state where will is made. Heard v. 

618 (1949). Drennen, 93 Miss. 236, 46 So. 243 (1908). 

108 



Executors and Administrators § 91-7-39 
RESEARCH REFERENCES 

ALR. Delegation by will of the power to seq. (appointment, qualification, and ten- 
nominate executor. 11 A.L.R.2d 1284. ure). 

Construction and effect of statutory pro- 8 Am. Jur. Legal Forms 2d, Executors 

vision disqualifying persons wanting in- and Administrators, §§ 104:15 et seq. (ap- 

tegrity. 73 A.L.R.2d 458. pointment, qualification, and tenure). 

Adverse interest or position as disqual- c JS# 33 C j g Executors and Adminis- 

ificationfor appointment of administrator, trators §§ 17 et seq 

executor or other personal represents Law Reviews . 1978 Mississippi Su- 
tive. 11 A.L.R.4th 638. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 158, 159, 160, 162. 

9A Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1 et 



preme Court Review: Miscellaneous. 50 
Miss. L. J. 165, March, 1979. 



§ 91-7-37. Eighteen the age of majority for executors and 
administrators. 

The age of eighteen (18) years shall be the age of majority of an executor, 
executrix, administrator or administratrix. In case letters testamentary or of 
administration shall be granted to any one under twenty-one (21) years, the 
bond executed by such person for the performance of the duties shall be as 
valid and binding as if such person were of full age. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (36); 1857, ch. 60, art. 51; 
1871, § 1107; 1880, § 1979; 1892, § 1832; Laws, 1906, § 2007; Hemingway's 
1917, § 1672; Laws, 1930, § 1616; Laws, 1942, § 512; Laws, 1974, ch. 446, eff 
from and after passage (approved March 26, 1974). 

Cross References — Removal of disability of minority generally, see §§ 93-19-1 et 
seq. 

JUDICIAL DECISIONS 

1. In general. 

Approved sale or lease by minor admin- 
istrator is valid. Giglio v. Woollard, 126 
Miss. 6, 88 So. 401, 14 A.L.R. 616 (1921). 

RESEARCH REFERENCES 

ALR. Capacity of infant to act as exec- CJS. 33 C.J.S., Executors and Adminis- 

utor or administrator, and effect of im- trators § 34. 
proper appointment. 8 A.L.R.3d 590. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators § 202. 

§ 91-7-39. Administration with will annexed. 

If there be no executor named in any last will and testament, or if the 
executors named all renounce the executorship or, being required to qualify, 
shall all refuse or fail to do so or shall refuse or wilfully neglect, for the space 

109 



§ 91-7-41 Trusts and Estates 

of forty days after the death of the testator, to exhibit the will and testament 
for probate or shall all be disqualified, then administration with the will 
annexed shall be granted to the person who would be entitled to administer 
according to the rule prescribed for granting administration. Before granting 
such administration, each executor named in the will and testament who has 
not renounced the executorship shall be summoned to show cause why 
administration should not be granted. If any executor named be absent from 
the state at the time of the probate of the will and administration should be 
granted during his absence, such executor shall be allowed forty days after his 
return to make application for letters testamentary and, on his qualifying, the 
letters of administration shall be revoked; and the administrator shall deliver 
all the estate which has come to his hands to the executor and settle the 
account of his administration. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (31); 1857, ch. 60, art. 52; 
1871, § 1108; 1880, § 1980; 1892, § 1833; Laws, 1906, § 2008; Hemingway's 
1917, § 1673; Laws, 1930, § 1617; Laws, 1942, § 513. 

Cross References — Power of bank to act as executor or administrator, see 
§ 81-5-33. 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and nexed); Form 1275 (order appointing ad- 
Administrators §§ 1014 et seq. ministrator de bonis non with will at- 

10 Am. Jur. PI & Pr Forms (Rev), Ex- tached). 

ecutors and Administrators, Forms 1271- CJS. 34 C.J.S., Executors and Adminis- 

1273 (petition or application for letters of trators §§ 947-950. 
administration de bonis non with will an- 

§ 91-7-41. Oath and bond of executor or administrator with 
will annexed. 

Every executor or administrator with the will annexed, at or prior to the 
time of obtaining letters testamentary or of administration, shall take and 
subscribe the following oath, viz.: 

"I do swear that the writing exhibited by me is the true last will and 

testament of , as far as I know and believe, and that I, if and when 

appointed as executor, will well and truly execute the same according to its 
tenor, and discharge the duties required by law." In the case of an 
administrator with the will annexed, then say "I, as administrator, will," 
and "when appointed as administrator, will" etc. 

He will also give bond in such penalty as will be equal to the full value of 
the estate, and with such sureties as may be approved of by the court or by the 
clerk, payable to the state, with the following conditions, viz.: 

"The condition of this bond is, that if the above bound , as 

executor of the last will and testament of , shall well and truly 

execute the will as far as the same may be consistent with law, and 
faithfully discharge all the duties required of him by law, then this 

110 



Executors and Administrators § 91-7-43 

obligation shall be void." If the obligor be administrator with the will 

annexed, then say "the above bound , as administrator with the 

will of annexed, will," etc. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (33); 1857, ch. 60, art. 53; 
1871, § 1109; 1880, § 1981; 1892, § 1834; Laws, 1906, § 2009; Hemingway's 
1917, § 1674; Laws, 1930, § 1618; Laws, 1942, § 514; Laws, 2001, ch. 422, § 1, 
eff from and after July 1, 2001. 

Cross References — Cancellation or reduction of bond, see § 9-5-103. 

Bond of administrator de bonis non, see §§ 91-7-69, 91-7-71. 

Bond of temporary administrator, see § 91-7-55. 

Oath and bond of administrator, see § 91-7-67. 

Bond and oath of county administrator, see § 91-7-75. 

Additional bond for county administrator, see § 91-7-77. 

Recording of bond, see § 91-7-311. 

New bonds for executors and administrators, see §§ 91-7-315, 91-7-317. 

Credit for cost of bond, see § 91-7-319. 

JUDICIAL DECISIONS 

1. In general. all the duties required of him by law, when 

The liability of the surety of an admin- considered in connection with Code 1942, 

istrator c. t. a. must be determined by the § 514. Fidelity & Deposit Co. v. Doughtry, 

condition of the bond to the effect that the 181 Miss. 586, 179 So. 846 (1938). 
administrator should faithfully discharge 

RESEARCH REFERENCES 

ALR. What funds, not part of the es- 8 Am. Jur. Legal Forms 2d, Executors 

tate, are received under color of office so as and Administrators, §§ 104:314 et seq. 

to render liable surety on executor's or (administration bonds), 

administrator's bond. 82 A.L.R.3d 869. C JS. 33 C. J.S., Executors and Adminis- 

Am Jur. 31 Am. Jur. 2d, Executors and trators §§ 71-77. 

Administrators §§ 312, 313, 321, 322. 34 c j s Executors and Administra- 

9A Am. Jur. PI & Pr Forms (Rev), Ex- tors §§ 244 
ecutors and Administrators, Forms 341 et 
seq. (administration bonds). 

§ 91-7-43. Executor as residuary legatee. 

If the executor be a residuary legatee, he may, instead of the bond required 
of other executors, give bond payable to the state in a sum, with two or more 
sureties, to the satisfaction of the court or clerk, conditioned to pay all the 
debts and legacies of the testator within one year. In such case the executor 
shall not be required to return an inventory or appraisement, but he shall file 
with his petition a sworn statement of the amount of the indebtedness of the 
testator, so far as he can ascertain the same. The giving of such bond shall not 
discharge the estate of the testator from liability for the payment of his debts; 
and such bond shall be subject to suits in the same manner as the bond 
required of other executors. 

Ill 



§ 91-7-45 Trusts and Estates 

SOURCES: Codes, 1892, § 1835; Laws, 1906, § 2010; Hemingway's 1917, § 1675; 
Laws, 1930, § 1619; Laws, 1942, § 515. 

§ 91-7-45. When bond not required. 

If the testator, by will, direct that his executor shall not be required to give 
bond, then none shall be required unless the court or the clerk, at the time of 
granting the letters or afterwards, shall have reason to require bond, in which 
event it shall be the duty of the court or clerk to require bond with sufficient 
sureties. If any creditor of such testator petition the court or the clerk in 
vacation, under oath, stating his claim and that he believes he is in danger of 
losing his demand, or some of it, by the bad management of said estate or by 
the personal insolvency of the executor, such executor, having had five days' 
notice of the petition, shall be required to give a bond with sureties, to be 
approved by the court or clerk in vacation, payable to said creditor in a 
sufficient sum to cover his legal demand, and conditioned to save him from all 
loss by reason of any act or omission of such executor. Instead of such bond, the 
executor may give bond as if he had not been relieved from it by the will. If the 
bond required in either case be not given, it shall be the duty of the court or 
clerk to remove the executor and grant letters of administration, with the will 
annexed, to some other person. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (34); 1857, ch. 60, art. 54; 
1871, § 1110; 1880, § 1982; 1892, § 1836; Laws, 1906, § 2011; Hemingway's 
1917, § 1676; Laws, 1930, § 1620; Laws, 1942, § 516. 

JUDICIAL DECISIONS 

1. In general. required to give bond, notwithstanding 

Executrix who was life tenant under testator's direction no bond was required, 

will and who asserted absolute estate in Brown v. Franklin, 157 Miss. 38, 127 So. 

all of property bequeathed, held properly 561 (1930). 

RESEARCH REFERENCES 

ALR. Testamentary option to purchase 
estate property as surviving optionee's 
death. 18 A.L.R.4th 578. 

§ 91-7-47. Rights and duties of executor or administrator 
with will annexed. 

(1) Every executor or administrator with the will annexed, who has 
qualified, shall have the right to the possession of all the personal estate of the 
deceased, unless otherwise directed in the will; and he shall take all proper 
steps to acquire possession of any part thereof that may be withheld from him, 
and shall manage the same for the best interest of those concerned, consis- 
tently with the will, and according to law. He shall have the proper 
appraisements made, return true and complete inventories except as other- 
wise provided by law, shall collect all debts due the estate as speedily as may 

112 



Executors and Administrators 



91-7-47 



be, pay all debts that may be due from it which are properly probated and 
registered, so far as the means in his hands will allow, shall settle his accounts 
as often as the law may require, pay all the legacies and bequests as far as the 
estate may be sufficient, and shall well and truly execute the will if the law 
permit. He shall also have a right to the possession of the real estate so far as 
may be necessary to execute the will, and may have proper remedy therefor. 
(2) In addition to the rights and duties contained in this section, he shall 
also have those rights, powers and remedies as set forth in Section 91-9-9. The 
provisions of this subsection shall stand repealed from and after July 1, 2008. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (32); 1857, ch. 60, art. 55; 
1871, § 1111; 1880, § 1983; 1892, § 1837; Laws, 1906, § 2012; Hemingway's 
1917, § 1677; Laws, 1930, § 1621; Laws, 1942, § 517; Laws, 1994, ch. 589, § 3; 
Laws, 1999, ch. 374, § 1; Laws, 2002, ch. 612 , § 1, eff from and after July 1, 
2002. 

Amendment Notes — The 2002 amendment substituted "July 1, 2008" for "July 1, 
2002" at the end of (2). 

Cross References — Accounts of executors in savings associations, see § 81-12-139. 

Additional obligations of fiduciary, see Miss. Uniform Chancery Court Rules 6.01 et 
seq. 

JUDICIAL DECISIONS 



1. In general. 

An executor's actions constituted civil 
contempt and did not measure up to the 
standard of prudence, caution and trust 
required of an executor where the estate 
was deprived of a substantial sum of 
money largely due to his inaction, even 
though he claimed that he relied on the 
advice of counsel for everything he did as 
executor. Holloway v. Holloway, 631 So, 2d 
127 (Miss. 1993). 

Although one person may be named as 
both executrix and testamentary trustee, 
the executrix performs only such duties 
and powers granted to her as the law and 
will designates, and the power designated 
by the will only for the testamentary 
trustee does not transfer to the executrix 
unless the will so designates. Harper v. 
Harper, 491 So. 2d 189 (Miss. 1986). 

Where a testamentary trust has not 
come into being, the authority to act as 
executrix, of one who is named both as 
executrix and as testamentary trustee by 
the will, is not governed by the trust 
powers granted to her as testamentary 
trustee. Harper v. Harper, 491 So. 2d 189 
(Miss. 1986). 

Court authority is not per se necessary 
to authorize an executrix with will an- 



nexed to exercise the estate's stock voting 
rights in a closely held corporation. Har- 
per v. Harper, 491 So. 2d 189 (Miss. 1986). 

Where will did not confer authority, 
neither executor nor administrator with 
will annexed had authority to collect rents 
on realty except during year of testator's 
death. Fidelity & Deposit Co. v. Dough try, 
181 Miss. 586, 179 So. 846 (1938). 

Action of administrator with will an- 
nexed in leasing realty following year of 
testator's death, without court authority, 
was in his capacity as tenant in common 
with coheirs and codevisees and not as 
administrator. Fidelity & Deposit Co. v. 
Doughtry, 181 Miss. 586, 179 So. 846 
(1938). 

Where to follow terms of will by not 
operating farm beyond certain period 
would result in permanent impairment 
and partial destruction of estate, court 
could authorize executor or trustee to op- 
erate farm for another year. Low v. First 
Nat'l Bank & Trust Co., 162 Miss. 53, 138 
So. 586, 80 A.L.R. 112 (1932). 

Powers of executor co-extensive with 
will. Ricks v. Johnson, 134 Miss. 676, 99 
So. 142 (1924). 

Executor entitled to execute trust where 
trustee not named; court must appoint 



113 



§ 91-7-49 



Trusts and Estates 



named person executor if qualified. Ricks 
v. Johnson, 134 Miss. 676, 99 So. 142 
(1924). 

Heirs and devisees should have notice 
and hearing on proceeding by executor to 
obtain possession of real estate, if execu- 
tor not given specific control by will and 
there was sufficient cash to pay debts. 
Miles v. Fink, 119 Miss. 147, 80 So. 532 
(1919). 

Executor before discharge cannot ac- 
quire tax title to land so as to defeat title 
of life devisee and remainderman. Deanes 



v. Whitfield, 107 Miss. 273, 65 So. 246 
(1914). 

Chancery court cannot enlarge statu- 
tory powers of administrator. Alexander v. 
Herring, 99 Miss. 427, 55 So. 360 (1911). 

Chancery court cannot authorize ad- 
ministrator to engage in business with 
estate funds. Alexander v. Herring, 99 
Miss. 427, 55 So. 360 (1911). 

Executor or administrator acting within 
authority is as much bound by estoppel as 
individuals. Caldwell v. Kimbrough, 91 
Miss. 877, 45 So. 7 (1907). 



RESEARCH REFERENCES 



ALR. Power and responsibility of exec- 
utor or administrator to compromise 
claim due estate. 72 A.L.R.2d 191. 

Power and responsibility of executor or 
administrator to compromise claim 
against estate. 72 A.L.R.2d 243. 

Power and responsibility of executor or 
administrator as to compromise or settle- 
ment of action or cause of action for death. 
72 A.L.R.2d 285. 

Judicial resolution of impasse between 
joint executors or administrators where 
concurrent action is required. 85 A.L.R.3d 
1124. 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 1029 et seq. 

8 Am. Jur. Legal Forms 2d, Executors 
and Administrators § 104:56 (letter from 
attorney to executor or administrator of 
estate as to duties and liabilities). 

8 Am. Jur. Legal Forms 2d, Executors 
and Administrators §§ 104:91 et seq. 
(custody and management of estate); 
§§ 104:161 et seq. (creditors' claims). 

CJS. 34 C.J.S., Executors and Adminis- 
trators § 950. 



§ 91-7-49. Directions of will to be followed. 

Whenever any last will and testament shall empower and direct the 
executor as to the sale of property, the payment of debts and legacies, and the 
management of the estate, the directions of the will shall be followed by the 
executor, and the provisions herein contained shall not so operate as to require 
the executor to pursue a different course from that prescribed in the will, if it 
be lawful. If land be directed by the will to be sold, the sale shall be made and 
the proper conveyance executed by the executors, or such of them as shall 
undertake the execution of the will, or by the person appointed by the will to 
execute the trust. If the executor fail to qualify or die before he execute the will, 
and if the person appointed fail to execute the trust, the sale shall be made by 
the administrator with the will annexed. The executor shall, in all cases, make 
publication for creditors to probate their claims, as required in the adminis- 
tration of the estates of intestates and with like effect, any provision of the will 
to the contrary notwithstanding. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (113); 1857, ch. 60, art. 136; 
1871, § 1194; 1880, § 1984; 1892, § 1838; Laws, 1906, § 2013; Hemingway's 
1917, § 1678; Laws, 1930, § 1622; Laws, 1942, § 518; Laws, 1940, ch. 232. 



114 



Executors and Administrators 



91-7-49 



Cross References — Additional provisions governing conduct of executor, see Miss. 
Uniform Chancery Court Rules 6.01 et seq. 

JUDICIAL DECISIONS 



1. In general. 

2. Sale of property. 

3. — Exercise of discretion. 

4. — Notice; advertising. 

5. — Taxes and expenses; surcharges. 

6. — Multiple executors. 

1. In general. 

Executrix was properly surcharged for 
payment of decedent's debts which had 
not been probated, registered, or allowed. 
Harper v. Harper, 491 So. 2d 189 (Miss. 
1986). 

Crops growing on devised land at time 
of death of testatrix which are not needed 
by executor for payment of debts or cost of 
administration of estate pass to devisee of 
land rather than into estate for benefit of 
residuary legatees where will devised 
land and all trucks, farm implements, 
tractors and equipment thereon and di- 
rected that immediately after death of 
devisor devisee should be vested with en- 
tire control over her part of property. 
Oberst v. Mullens, 43 So. 2d 560 (Miss. 
1949). 

Intention of testator ascertained from 
entire will given effect if not illegal. 
Lesche v. Cutrer, 135 Miss. 469, 99 So. 136 
(1924). 

Where a will creates an express trust 
for the payment of debts, by virtue of this 
section [Code 1942, § 518], the statute of 
limitations barring claims unless pro- 
bated within one year after notice to credi- 
tors has no application. Gordon v. 
McDougall, 84 Miss. 715, 37 So. 298 
(1904). 

The statute of limitations is no bar to 
the payment of unprobated claims in car- 
rying out a will creating an express trust 
for the payment of debts. Gordon v. 
McDougall, 84 Miss. 715, 37 So. 298 
(1904). 

Executors who have paid unprobated 
claims in pursuance of wills creating ex- 
press trusts for their payment are entitled 
to be credited therewith in their accounts. 
Gordon v. McDougall, 84 Miss. 715, 37 So. 
298 (1904). 



2. Sale of property. 

Where a power of sale of the real estate 
is conferred by a testator because of his 
personal trust and confidence in the 
named executors neither the surviving 
executor, where more than one is desig- 
nated, nor an administrator with the will 
annexed, where the named executors fail 
to qualify, die or resign, can convey title to 
the real property of testator without a 
valid order of court authorizing and em- 
powering the sale and conveyance. Batson 
v. Humble Oil & Ref. Co., 213 Miss. 340, 
56 So. 2d 828 (1952). 

Where will gives power of sale to pay 
legacies, or for distribution, without stat- 
ing by whom the sale is to be made, the 
executor takes the power by implication. 
Davis v. Sturdivant, 197 Miss. 139, 19 So. 
2d 499 (1944). 

Under will providing "after my house 
and the rest of jewelry have been sold, I 
want the money equally divided between 
two named legatees," and "should either 
boy die before of age this money to revert 
to the estate for further distribution of 
other request," executrix had implied 
power to sell the realty, although proceeds 
therefrom were not to be delivered until 
the legatees became of age. Davis v. 
Sturdivant, 197 Miss. 139, 19 So. 2d 499 
(1944). 

Sale by executrix of realty under power 
of sale in will is not a judicial sale, and 
needs no court order justifying it. Davis v. 
Sturdivant, 197 Miss. 139, 19 So. 2d 499 
(1944). 

Gratuitous advice given by chancellor 
pursuant to request by executrix concern- 
ing implied power under will to sell realty 
does not diminish power of executrix in 
respect thereto. Davis v. Sturdivant, 197 
Miss. 139, 19 So. 2d 499 (1944). 

In a contest between residuary legatees 
of a will and beneficiaries of an alleged gift 
inter vivos of certain separate stock which 
was by the will directed to be sold by the 
executors along with other assets of the 
estate for the payment of numerous lega- 
cies, wherein the residuary legatee sought 



115 



§ 91-7-49 



Trusts and Estates 



to compel a more complete inventory by 
including such corporate stock, the bur- 
den of proof was upon the surviving exec- 
utor and those claiming the stock, not as 
purchasers for value, to prove that such 
stock was not a part of the assets of the 
estate being administered. Lindeman's 
Estate v. Herbert, 188 Miss. 842, 193 So. 
790 (1940). 

Authority conferred upon executors to 
sell lands held not discretionary, but to 
require sale at all events. Glidewell v. 
Pannell, 158 Miss. 249, 130 So. 288 
(1930). 

Executor, unable to sell testator's busi- 
ness at public auction, may be authorized 
by court to sell same to beneficiary for 
herself and as guardian of infant benefi- 
ciary. United States Fid. & Guar. Co. v. 
State, 110 Miss. 16, 69 So. 1007 (1915). 

3. — Exercise of discretion. 

Decision to sell, made by executor, given 
discretion by will to sell or to operate 
wholesale grocery business, cannot be 
said to be other than act of ordinarily 
prudent business man, when success of 
business was due to decedent, whose place 
could not be filled because of war, great 
uncertainty prevailed in business field, 
good sale could be made, and objectors 
showed no certainty of profit from opera- 
tions, or better sale later after attempt at 
continuation of business. Walker v. First 
Nat'l Bank, 204 Miss. 696, 38 So. 2d 98 
(1948). 

Supreme court will not say that confir- 
mation of sale of wholesale grocery busi- 
ness by executor, acting under authority 
of will, was manifestly wrong, when it is 
not pointed out by what means or manner 
a higher price could have been obtained 
for the assets of the estate nor in what 
respect beneficiaries in will suffered any 
loss. Walker v. First Nat'l Bank, 204 Miss. 
696, 38 So. 2d 98 (1948). 

4. — Notice; advertising. 

Sale of decedent's property without le- 
gal citation to beneficiaries in will is valid 
where will relieves executor from legal 
citation to interested parties. Walker v. 
First Nat'l Bank, 204 Miss. 696, 38 So. 2d 
98 (1948). 

Objection to executor's sale of wholesale 
grocery business on ground that it was not 



sufficiently advertised is not well taken 
when, under the terms of will under which 
sale was made, no public notice of pro- 
posed sale was required to be given. 
Walker v. First Nat'l Bank, 204 Miss. 696, 
38 So. 2d 98 (1948). 

Objection to executor's sale of wholesale 
grocery business on ground that it was not 
sufficiently advertised is not well taken 
where publication containing elements of 
sale was made in three newspapers for 
period of approximately a week, prospec- 
tive bidders were notified by telephone 
and letters, many people inspected prop- 
erty, successful bid exceeded appraised 
value, and objectors produced no proof 
more than possibility or speculation that 
had sale been postponed for ten or twenty 
days there would have been higher, or 
more numerous, bids on the later date. 
Walker v. First Nat'l Bank, 204 Miss. 696, 
38 So. 2d 98 (1948). 

Fact that no notice was given to inter- 
ested parties respecting sale of realty by 
executrix under power of sale in will, 
either in proceedings for sale or those 
whereby directions of court were sought, 
does not constitute a valid defense in 
executrix's suit against purchaser at sale 
for specific performance. Davis v. 
Sturdivant, 197 Miss. 139, 19 So. 2d 499 
(1944). 

5. — Taxes and expenses; surcharges. 

Executrix would be surcharged for the 
amount the testamentary trust property 
was damaged or put in jeopardy due to her 
mortgaging of estate's unencumbered real 
property as security for debt incurred by 
testator which was never probated. Har- 
per v. Harper, 491 So. 2d 189 (Miss. 1986). 

Reasonable expenditures for better sale 
of land were properly made out of general 
funds of estate where will directed sale of 
land and payment of proceeds, in different 
amounts, to special legatees with provi- 
sion for reduction in proper proportion of 
each in event property did not sell for total 
amount devised, since special legatees are 
to be favored over residuary legatees to 
end that they may receive entire amount 
bequeathed to them respectively if prop- 
erty designated for that purpose could be 
caused to bring enough for that purpose 
by reasonable expenditures to promote 



116 



Executors and Administrators 



§ 91-7-53 



advantageous sale. Oberst v. Mullens, 43 
So. 2d 560 (Miss. 1949). 

Unpaid taxes did not constitute valid 
defense to executrix's suit for specific per- 
formance against purchaser of realty sold 
under power of sale in will, since executrix 
has duty under Code 1942, § 572 to pay 
the taxes and such obligation can be read- 
ily accounted for under the decree for 
specific performance. Davis v. Sturdivant, 
197 Miss. 139, 19 So. 2d 499 (1944). 

In compliance with decree for specific 
performance of realty sold by executrix 
under power of sale in will, purchaser is 
entitled to deed free from lien for unpaid 
taxes. Davis v. Sturdivant, 197 Miss. 139, 
19 So. 2d 499 (1944). 

6. — Multiple executors. 

A testamentary power of sale conferred 
on two named executors did not survive 
the death of one of them and sales of real 
property made by the surviving executor 
were set aside where the intention of the 
testator, as indicated by repeated refer- 
ences in the will to actions to be taken by 
the co-executors in their joint discretion, 
was that the power of the remaining exec- 



utor not survive. Reynolds v. State, 331 
So. 2d 913 (Miss. 1976). 

The court would not order specific per- 
formance of a contract for the sale of land, 
which contract was signed by only one of 
two coexecutors where the second coexec- 
utor knew nothing of the execution of the 
will and had not authorized the other 
executor to sign it for him, and where the 
contract itself did not purport to be signed 
by the executor for himself and for the 
coexecutor as joint executors, and where, 
although the second coexecutor signed a 
deed as contemplated by the contract, 
such deed was delivered not to the pur- 
chaser but merely to the attorney for the 
two coexecutors, such act not constituting 
delivery of the deed nor a ratification of 
the contract by the second coexecutor. 
Carter v. Hurst, 234 So. 2d 616 (Miss. 
1970). 

Where will required sale of lands at all 
events, power vested in executors could be 
exercised by survivors, and court errone- 
ously directed different course from that 
prescribed. Glidewell v. Pannell, 158 Miss. 
249, 130 So. 288 (1930). 



§ 91-7-51. Effect of receipt for money by executor or trustee. 

The receipt by an executor or any trustee, whether under a will or other 
instrument, for any money payable to him in the execution of his trust shall 
discharge the person paying it from any liability to see to the application of the 
money, unless otherwise expressly provided in the instrument which creates 
the trust. 

SOURCES: Codes, 1880, § 1985; 1892, § 1839; Laws, 1906, § 2014; Hemingway's 
1917, § 1679; Laws, 1930, § 1623; Laws, 1942, § 519. 

JUDICIAL DECISIONS 



1. In general. 

If plaintiff had had a valid claim to the 
proceeds of an estate sale, his sole legal 
recourse would have been to probate a 
claim against the estate pursuant to § 91- 



7-51, and since he did not do so, he was 
barred from claiming the proceeds of the 
sale of minerals from the funds of the 
estate. Kelly v. Shoemake, 460 So. 2d 811 
(Miss. 1984). 



§ 91-7-53. Temporary administrator. 

Whenever it shall be necessary for the care and preservation of the estate 
of a decedent before the grant of letters testamentary, or of administration, to 
the person entitled thereto, the chancery court or chancellor in vacation, or the 
clerk of such court, on the petition of any creditor or other interested person, 



117 



§ 91-7-53 Trusts and Estates 

shall appoint a suitable person to be known as "temporary administrator." The 
person named as executor or the person apparently entitled to letters of 
administration may be appointed temporary administrator, unless the court 
shall find that the circumstances require the appointment of a different 
person. 

Whenever an appeal shall be taken from the grant of letters testamentary, 
or of administration, or whenever a last will and testament shall be contested, 
the chancery court or chancellor in vacation, on petition of any interested 
person, may appoint a temporary administrator if it shall appear necessary for 
the protection of the rights of the parties, and may make such appointment on 
such terms and impose such conditions as may seem proper. 

The powers of such temporary administrator may be special or general, as 
the court may find proper, and he may be authorized to take charge of, 
preserve, and administer the estate until the appeal or contest shall be 
determined. Letters may be issued to him in ordinary form, except that he 
shall be therein designated as temporary administrator, and any terms or 
conditions imposed shall be stated therein; and the letters shall state that he 
is to act only until another appointment shall be made, either temporary or 
permanent. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (13); 1857, ch. 60, art. 30; 
1871, § 1194; 1880, § 1986; 1892, § 1840; Laws, 1906, § 2015; Hemingway's 
1917, § 1680; Laws, 1930, § 1624; Laws, 1942, § 520; Laws, 1900, ch. 94; 
Laws, 1948, ch. 228, § 1. 

Cross References — Letters of administration, see §§ 91-7-63 et seq. 
Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

JUDICIAL DECISIONS 

1. In general. or guilty of misconduct. Sandifer v. 

On a will contest, the chancellor was Sandifer, 237 Miss. 464, 115 So. 2d 46 

justified in refusing to appoint a tempo- (1959). 

rary administrator of the estate when, at In a proceeding on a petition for ap- 

the time the opponent of the will filed his pointment of a permanent administrator, 

petition to probate a later will in solemn where the chancery court's determination 

form, the executrix, acting under an ear- of the heirs at law was not final because of 

Her will previously admitted to probate, a pending appeal, the appropriate action 

had fully administered the estate, includ- was appointment of a suitable person to 

ing notice to creditors and payment of all act as a temporary administrator until the 

debts properly probated and nothing re- legal heirs of the decedent were finally 

mained to be done except final distribu- determined. In re Burnside's Estate, 227 

tion of the assets after a final decree of the Miss. 110, 85 So. 2d 817 (1956). 

court terminating the litigation. Cupit v. The status of an administrator is an 

International Paper Co., 196 So. 2d 521 issue distinct from other matters and it is 

(Miss. 1967). not necessary that an appeal from an 

Where a will probated in common form order withdrawing letters of administra- 

is contested, the executor may be tempo- tion await the final determination of the 

rarily removed pending the contest, and a estate, and to hold otherwise would defeat 

temporary administrator appointed, with- the claim of a petitioner by permitting the 

out first finding the executor disqualified incumbent to serve throughout the entire 

118 



Executors and Administrators § 91-7-55 

administration. Wells v. Boatner, 216 granted to widow and sole heir at law to 
Miss. 108, 61 So. 2d 662 (1952). letters as temporary administratrix pend- 
Chancery court has power under this ing a will contest, did not render the 
section [Code 1942, § 520] to continue action of the court absolutely void in or- 
widow of deceased testator as administra- dering the land sold by her, but only 
trix for purpose of sale of land to pay debts voidable at most, since the court had con- 
in absence of sufficient personalty there- stitutional jurisdiction of the subject mat- 
fore, and failure of the court, after the ter and jurisdiction of all the parties in 
existence of the will became known, to interest. Gill v. Johnson, 206 Miss. 707, 40 
change the letters of administration So. 2d 600 (1949). 

RESEARCH REFERENCES 

ALR. Loss of right to be appointed ex- 1195 (petition or application for appoint- 

ecutor by delay in presenting will for pro- ment of special or temporary 

bate or in seeking letters testamentary. 45 administrator); Forms 1209-1211 (letters 

A.L.R.2d 916. of special or temporary administration). 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 

Administrators §§ 1044 et seq. trators §§ 951 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1191- 

§ 91-7-55. Estate to be appraised. 

Before the temporary administrator shall act as such, he shall take and 
subscribe an oath at or prior to the time of his appointment to faithfully 
discharge the duties required of him by law as such temporary administrator, 
and shall give bond, payable to the state, in such penalty and with such 
sureties as may be approved by the court or clerk, conditioned for the faithful 
discharge of the duties required of him as such temporary administrator by 
law or by order of the court or clerk. Thereupon, the estate shall be appraised 
as now provided by law upon the grant of letters testamentary or of adminis- 
tration, unless the same shall be dispensed with by the court or clerk. The 
temporary administrator shall make and return to the court a complete 
inventory of the estate, as is required by law to be made by executors in general 
or regular administrators, and, as soon as practicable, shall publish the notice 
provided by law to be published by executors and administrators, requiring 
creditors to have their claims against the estate probated and registered. All 
the provisions of the law governing such notice, the proof and registering of 
claims, and the bar of such as are not proved and registered shall apply when 
the notice is published by the temporary administrator, as when published by 
an executor or a general or regular administrator. When the temporary 
administrator shall have published such notice, no further notice to creditors 
to have their claims probated and registered shall be given or published upon 
any subsequent grant of letters testamentary or of administration; and where 
the estate has been appraised upon the appointment of a temporary adminis- 
trator, no other appraisement shall be made upon the grant of letters 
testamentary or of the administration thereafter, unless the court or clerk 
shall deem the appraisement necessary or advisable. 



119 



§ 91-7-57 Trusts and Estates 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (37); 1857, ch. 60, art. 56; 
1871, § 1112; 1880, § 1987; 1892, § 1841; Laws, 1906, § 2016; Hemingway's 
1917, § 1681; Laws, 1930, § 1625; Laws, 1942, § 521; Laws, 2001, ch. 422, § 2, 
eff from and after July 1, 2001. 

Cross References — Inventory generally, see §§ 91-7-93 et seq. 
Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and seq. (appointment and qualification of ap- 

Administrators § 493. praisers). 

9A Am. Jur. PI & Pr Forms (Rev), Ex- CJS. 33 C.J.S., Executors and Adminis- 

ecutors and Administrators, Forms 561 et trators §§ 157 et seq. 

§ 91-7-57. Powers of temporary administrator. 

The temporary administrator shall have power, and it shall be his duty, to 
collect the goods, chattels, personal property and debts of the decedent and to 
give acquittances for debts and liabilities upon payment. He may sue and be 
sued in all cases in which a general or regular administrator may sue or be 
sued; and suits brought by or against him shall not abate by the termination 
of his authority, but may be prosecuted by or against the executor or 
administrator thereafter appointed, and judgments recovered by or against 
him may be enforced by or against the executor or regular administrator 
thereafter appointed. The court, or chancellor in vacation, may at any time 
authorize the temporary administrator to sell such of the estate as may be 
perishable, likely to deteriorate in value, or be expensive to keep, and to 
dispose of any crops for cash, and to account for such property sold or disposed 
of. The court or chancellor, in ordering the sale of such property, shall take into 
consideration any disposition thereof by last will and testament, in case there 
be such, and shall order the sale of such property or not, as may be best for the 
parties in interest. After ninety (90) days from the time the temporary 
administrator was appointed and the time for probating claims has expired, 
the court or chancellor in vacation may order the temporary administrator to 
pay the claims of creditors and to hold the balance of the estate to await the 
ultimate probate or defeat of such last will and testament. In case the court, or 
chancellor in vacation, shall order the temporary administrator to pay credi- 
tors and make distribution, or to do either, he shall have all the powers and 
rights for the purpose over the estate, real and personal, that are conferred by 
law upon general or regular administrators; and all laws governing the acts 
and duties of a general or regular administrator shall then apply to and govern 
the temporary administrator. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (37); 1857, ch. 60, art. 57; 
1871, § 1113; 1880, § 1988; 1892, § 1842; Laws, 1906, § 2017; Hemingway's 
1917, § 1682; Laws, 1930, § 1626; Laws, 1942, § 522; Laws, 1936, ch. 240; 
Laws, 1975, ch. 373, § 2, eff from and after January 1, 1976. 

120 



Executors and Administrators § 91-7-59 

Cross References — Power of executor or administrator to sue for rent due, see 
§ 89-7-13. 

Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

JUDICIAL DECISIONS 

1. In general. pel as individuals. Caldwell v. Kimbrough, 

Executor or administrator acting within 91 Miss. 877, 45 So. 7 (1907). 
his authority is as much bound by estop- 

RESEARCH REFERENCES 

ALR. Waiver or tolling of statute of Power and responsibility of executor or 

limitations by executor or administrator. 8 administrator as to compromise or settle- 

A.L.R.2d 660. ment of action or cause of action for death. 

Power and responsibility of executor or 72 A.L.R.2d 285. 

administrator to compromise claim due Am Jur. 31 Am. Jur. 2d, Executors and 

estate. 72 A.L.R.2d 191. Administrators §§ 1048, 1054. 

Power and responsibility of executor or c JS 33 c j g Executors and Adminis- 

administrator to compromise claim trators §§ 957-960 
against estate. 72 A.L.R.2d 243. 

§ 91-7-59. Compensation of temporary administrator. 

On the grant of letters testamentary or of administration, the powers of a 
temporary administrator shall cease, and it shall be his duty at once to settle 
his accounts with the court or chancellor in vacation and to deliver all the 
estate that may be in his hands to the person to whom letters testamentary or 
of administration shall have been granted. In case of refusal, the court or 
chancellor may proceed against him by attachment and impose a fine, as for a 
contempt, not exceeding twenty per centum upon the amount of the estate in 
his hands; and his bond may be put in suit by the executor or administrator. 
The temporary administrator shall, at the same time, furnish the executor or 
administrator with a list of all judgments or suits to which he is a party. The 
court, or chancellor in vacation, may allow the temporary administrator such 
compensation as may be just, not exceeding five per centum on the amount of 
the estate inventoried by him. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (40); 1857, ch. 60, art. 58; 
1871, §§ 1114, 1115; 1880, §§ 1989, 1990; 1892, § 1843; Laws, 1906, § 2018; 
Hemingway's 1917, § 1683; Laws, 1930, § 1627; Laws, 1942, § 523. 

Cross References — Allowance for losses, see § 91-7-299. 

JUDICIAL DECISIONS 

1. In general. trator, where order appointing temporary 

Temporary administrator held entitled administrator directed him to pay de- 

to compensation for, and necessary attor- ceased's debts and all but his incidental 

ney fees incurred in, performance of his acts and expenditures were authorized by 

duties on same basis as regular adminis- court and his services were for best inter- 

121 



§ 91-7-61 



Trusts and Estates 



est of estate. King v. Wade, 175 Miss. 72, 
166 So. 327 (1936). 

Allowance of compensation and attor- 
ney's fees to administrator within limits 
prescribed by statute is addressed to 
sound discretion of chancery court. King v. 
Wade, 175 Miss. 72, 166 So. 327 (1936). 

Chancery court's allowance of compen- 
sation to temporary administrator which 
was less than three per cent of the estate 
as inventoried, and allowance for attor- 



ney's fees of slightly less than four per 
cent of estate, held not abuse of discretion. 
King v. Wade, 175 Miss. 72, 166 So. 327 
(1936). 

Supreme court will not interfere with 
chancery court's exercise of discretion in 
regard to allowance of compensation and 
attorney's fees to administrator, except in 
cases of manifest and flagrant abuse. King 
v. Wade, 175 Miss. 72, 166 So. 327 (1936). 



RESEARCH REFERENCES 



ALR. Authority of probate court to de- 
part from statutory schedule fixing 
amount of executor's commissions and at- 
torneys' fees. 40 A.L.R.4th 1189. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators § 1041. 



10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1451 
et seq. (compensation and allowances). 



§ 91-7-61. Administrator to institute suits. 

If necessary, an administrator may be appointed to institute and conduct 
suits, whose power shall cease when the litigation is entirely closed and who 
shall only account for the proceeds of the suit. 

SOURCES: Codes, 1880, § 1992; 1892, § 1845; Laws, 1906, § 2019; Hemingway's 
1917, § 1684; Laws, 1930, § 1628; Laws, 1942, § 524. 

Cross References — Actions by administrator de bonis non, see § 91-7-71. 
Actions which accrue during administration, see § 91-7-231. 
Actions between co-administrators, see § 91-7-247. 
Suits by foreign executors or administrators, see § 91-7-259. 

Requirement that administrator must, unless he is licensed to practice law, retain 
solicitor, see Miss. Uniform Chancery Court Rule 6.01. 

JUDICIAL DECISIONS 



1. In general. 

Widow's failure to qualify as adminis- 
tratrix did not adversely affect the rights 
of husband's insurer to recover on items 
covered by a subrogation agreement and 
the subrogation provisions of policy since 
the insurer had the right under Code 1972 
§§ 91-7-61, 91-7-63, to apply for and re- 
ceive letters of administration to conduct 
whatever suits it deemed necessary to 
enforce its right. Thornton v. Insurance 
Co. of N. Am., 287 So. 2d 262 (Miss. 
1973). 



Decree in proceeding for appointment of 
administratrix and contract with attorney 
on part of administratrix for prosecution 
of death action can have no effect on right 
of widow and children to institute and 
maintain suit. Mississippi Power & Light 
Co. v. Smith, 169 Miss. 447, 153 So. 376 
(1934). 

Railroad defendant cannot move for re- 
vocation of letters of administration 
granted for purpose of prosecuting suit for 
personal injuries. Yazoo & Miss. V. Ry. v. 
Jeffries, 99 Miss. 534, 55 So. 354 (1911). 



122 



Executors and Administrators § 91-7-63 

RESEARCH REFERENCES 

Am Jur. 8 Am. Jur. Legal Forms 2d, istrator of estate as to duties and liabili- 
Executors and Administrators, § 104:56, ties), 
(letter from attorney to executor or admin- 

§ 91-7-63. Grant of administration. 

(1) Letters of administration shall be granted by the chancery court of the 
county in which the intestate had, at the time of his death, a fixed place of 
residence; but if the intestate did not have a fixed place of residence, then by 
the chancery court of the county where the intestate died, or that in which his 
personal property or some part of it may be. The court shall grant letters of 
administration to the relative who may apply, preferring first the husband or 
wife and then such others as may be next entitled to distribution if not 
disqualified, selecting amongst those who may stand in equal right the person 
or persons best calculated to manage the estate; or the court may select a 
stranger, a trust company organized under the laws of this state, or of a 
national bank doing business in this state, if the kindred be incompetent. If 
such person does not apply for administration within thirty (30) days from the 
death of an intestate, the court may grant administration to a creditor or to 
any other suitable person. 

(2) In addition to the rights and duties of the administrator contained in 
this chapter, he shall also have those rights, powers and remedies as set forth 
in Section 91-9-9. The provisions of this subsection shall stand repealed from 
and after July 1, 2008. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (54); 1857, ch. 60, art. 61; 
1871, §§ 1088, 1089; 1880, § 1993; 1892, § 1850; Laws, 1906, § 2024; Heming- 
way's 1917, § 1689; Laws, 1930, § 1629; Laws, 1942, § 525; Laws, 1928, ch. 83; 
Laws, 1994, ch. 589, § 4; Laws, 1999, ch. 374, § 2; Laws, 2002, ch. 612 , § 2, eff 
from and after July 1, 2002. 

Amendment Notes — The 2002 amendment substituted "July 1, 2008" for "July 1, 
2002" at the end of (2). 

Cross References — Power of chancery clerk to grant letters of administration, see 
§§ 9-5-141 et seq. 

Payment of federal and state tax refunds due decedent without administration, see 
§ 27-73-9. 

Bank acting as administrator, see § 81-5-33. 

Appointment of temporary administrator, see § 91-7-53. 

Administrator de bonis non, see § 91-7-69. 

County administrators, see §§ 91-7-73 et seq. 

Appointment of sheriff as administrator, see § 91-7-83. 

Executor in his own wrong, see § 91-7-249. 

JUDICIAL DECISIONS 

1. Construction and application in gen- 2. Necessity of administration. 

eral. 3. Administration on behalf of creditors. 

123 



§ 91-7-63 



Trusts and Estates 



1. Construction and application in 
general. 

Deceased musician's half-sister became 
executrix de son tort of decedent's unpro- 
bated estate by entering agreement, in 
which she purported to be sister and only 
surviving heir of decedent, for assignment 
of decedent's works, photographs, and ma- 
terials in exchange for share of royalties. 
Johnson v. Harris, 705 So. 2d 819 (Miss. 
1997), cert, denied, 522 U.S. 1109, 118 S. 
Ct. 1037, 140 L. Ed. 2d 104 (1998). 

Status as executrix de son tort, in favor 
of alleged illegitimate child of deceased 
musician, was assumed when irrevocable 
power of attorney was accepted from de- 
cedent's half-sister after half-sister had 
assigned all rights to musician's copy- 
rights, as well as by later accepting ap- 
pointment as personal representative of 
half-sister's estate. Johnson v. Harris, 705 
So. 2d 819 (Miss. 1997), cert, denied, 522 
U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 
104 (1998). 

Although the appointment of non-dis- 
tributee relatives lies within the discre- 
tion of the chancery court under § 91-7- 
63, a non-distributee relative had a legal 
right to letters of administration under 
the statute where she was the guardian of 
the sole minor heir. Moreland v. Moreland, 
537 So. 2d 1337 (Miss. 1989). 

The chancery court is given wide discre- 
tion in the appointment and revocation of 
administrators, including the discretion- 
ary authority to waive compliance with 
the 30-day period to apply for administra- 
tion set forth in § 91-7-63. Moreland v. 
Moreland, 537 So. 2d 1337 (Miss. 1989). 

Notice to creditors of decedent's estate 
signed by the then duly appointed and 
qualified administrator was valid, not- 
withstanding that he was removed, on 
motion of decedent's widow, on the same 
date that notice to the creditors was first 
published, and a creditor's claim filed 
some 2 months after expiration of the 90 
day period from first publication date was 
time barred. Myers v. Myers, 498 So. 2d 
376 (Miss. 1986). 

Widow's failure to qualify as adminis- 
tratrix did not adversely affect the rights 
of husband's insurer to recover on items 
covered by a subrogation agreement and 
the subrogation provisions of policy since 



the insurer had the right under Code 1972 
§§ 91-7-61, 91-7-63, to apply for and re- 
ceive letters of administration to conduct 
whatever suits it deemed necessary to 
enforce its right. Thornton v. Insurance 
Co. of N. Am., 287 So. 2d 262 (Miss. 1973). 

The provision of a state probate code 
giving a mandatory preference for ap- 
pointment as administrator of a dece- 
dent's estate to a male applicant over a 
female applicant otherwise equally quali- 
fied violates the equal protection clause of 
the Fourteenth Amendment; giving a 
mandatory preference to members of ei- 
ther sex over members of the other, 
merely to accomplish the elimination of a 
hearing on the merits of the applicants, 
constitutes an arbitrary legislative choice 
forbidden by the Fourteenth Amendment. 
Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 
L. Ed. 2d 225 (1971), conformed to, 94 
Idaho 542, 493 P.2d 701 (1972). 

A daughter of a decedent who is his sole 
heir and distributee, and fully competent, 
is entitled, as against decedent's guard- 
ian, to be appointed administratrix of his 
estate. Moore v. Roecker, 239 Miss. 606, 
124 So. 2d 473 (1960). 

Action of attorneys for plaintiff, who 
had a cause of action arising out of a 
motor vehicle collision, in actively partic- 
ipating in securing the appointment of 
another as administrator of decedent's es- 
tate in order that the action against the 
estate might be brought in Simpson 
County and, thus, draw two other codefen- 
dants into the circuit court of that county 
was not improper, in the absence of a 
fraudulent agreement between plaintiff's 
attorneys and the administrator, and the 
codefendant's motion for a change of 
venue was properly denied. Great S. Box 
Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912 
(1957). 

A chancellor has large discretion in the 
selection of the person to be appointed 
administrator of an estate except in cases 
made mandatory by the statute. In re 
Burnside's Estate, 227 Miss. 110, 85 So. 
2d 817 (1956). 

In a proceeding on a petition for an 
appointment of an administrator, where a 
will appointing executors for decedent's 
estate was set aside, the court did not 
abuse its discretion in denying an appli- 



124 



Executors and Administrators 



§ 91-7-63 



cation for appointment as administrator 
and declining to remove the executors 
theretofore appointed. In re Burnside's 
Estate, 227 Miss. 110, 85 So. 2d 817 
(1956). 

Executor or administrator is regarded 
as officer of court subject to direction, 
supervision and control of court until es- 
tate is closed and he is finally discharged. 
Bailey v. Sayle, 206 Miss. 757, 40 So. 2d 
618 (1949). 

Chancellor has large measure of discre- 
tion, within limitations, in appointment 
and revocation of administration of dece- 
dents' estates. Stribling v. Washington, 
204 Miss. 529, 37 So. 2d 759 (1948). 

The right of husband, wife, or 
distributees to preference in granting of 
administration of intestate's estate is le- 
gal right, unless incompetent, but matter 
is within sound discretion of court as to 
others. Stribling v. Washington, 204 Miss. 
529, 37 So. 2d 759 (1948). 

Removal of appointed administratrix 
and appointment of deceased's widow on 
petition by widow filed more than thirty 
days after intestate's death is exercise of 
sound discretion of chancellor and proper 
when original administratrix was ap- 
pointed on petition of daughter who with- 
held from chancellor all information as to 
widow, stating deceased was survived by 
three children, and widow knew nothing 
of proceedings and did not know adminis- 
tration was necessary. Stribling v. Wash- 
ington, 204 Miss. 529, 37 So. 2d 759 
(1948). 

Appointment of one other than husband 
of deceased as administrator within 
thirty-day period is not void, but appoin- 
tee is subject to removal on husband's 
application within thirty days, provided 
husband is fit person for appointment. 
Kevey v. Johnson, 167 Miss. 775, 150 So. 
532 (1933). 

Sister of deceased appointed as admin- 
istratrix held entitled to have administra- 
tion expenses fixed as charge on real prop- 
erty inherited by husband who did not 
apply for appointment as administrator 
within thirty-day period. Kevey v. John- 
son, 167 Miss. 775, 150 So. 532 (1933). 

2. Necessity of administration. 

Heirs suing for debt to decedent must 
allege and prove no necessity of local ad- 



ministration. Richardson v. Neblett, 122 
Miss. 723, 84 So. 695, 10 A.L.R. 272 
(1920). 

Foreign administrator has no interest 
in personalty situated in Mississippi. 
Richardson v. Neblett, 122 Miss. 723, 84 
So. 695, 10 A.L.R. 272 (1920). 

Where insurance policy was expressly 
payable to daughter of deceased alone, 
administrator to collect policy not neces- 
sary. Young v. Roach, 105 Miss. 6, 61 So. 
984 (1913). 

3. Administration on behalf of credi- 
tors. 

Where a nonresident and a resident 
were killed in an automobile collision in 
Mississippi allegedly as the result of the 
nonresident's negligence, the heirs of the 
deceased resident had a cause of action 
against the personal representative of the 
deceased nonresident under the wrongful 
death statute Code 1942, § 1453, and 
were creditors of the nonresident's estate, 
and upon their petition the chancery court 
of the county where the nonresident's 
death occurred had jurisdiction to grant 
administration upon the estate of the non- 
resident. Day v. Hart, 232 Miss. 516, 99 
So. 2d 656 (1958). 

Provision of this section [Code 1942, 
§ 525] that if such persons as are pre- 
ferred do not apply for administration 
within thirty days from death of intestate 
court may grant administration to credi- 
tor or other person is primarily for benefit 
of creditors, and only secondarily for ben- 
efit of persons inferior in priority to right 
to administer. Stribling v. Washington, 
204 Miss. 529, 37 So. 2d 759 (1948). 

Recalcitrant heirs will not be permitted 
to hamper creditors to prejudice of credi- 
tors' rights against an estate by failure 
promptly to institute administration 
thereof. Stribling v. Washington, 204 
Miss. 529, 37 So. 2d 759 (1948). 

Creditors of decedent have first claim 
against his estate, and it is paramount 
duty of administrator to protect their in- 
terest. Stribling v. Washington, 204 Miss. 
529, 37 So. 2d 759 (1948). 

The receiver of an alleged creditor of a 
decedent could not request appointment of 
administrator for decedent's estate, un- 
less it appeared that decedent died owing 
debt to alleged creditor. Thompson v. Cart- 



125 



91-7-65 



Trusts and Estates 



er's Estate, 180 Miss. 104, 177 So. 356 
(1937). 

The possession and ownership of a de- 
cedent's note on which there was a bal- 
ance due disclosed, prima facie, such a 
debt as entitled receiver of alleged credi- 
tor of decedent to request appointment of 
administrator for decedent's estate. 
Thompson v. Carter's Estate, 180 Miss. 
104, 177 So. 356 (1937). 



A decedent's heirs could not set up that 
amount of bank deposit due decedent ex- 
ceeded amount of note held by receiver of 
bank, to prevent appointment of adminis- 
trator for decedent's estate on application 
of receiver, but such issue could only be 
raised in course of administration, or in 
suit on note against administrator. 
Thompson v. Carter's Estate, 180 Miss. 
104, 177 So. 356 (1937). 



RESEARCH REFERENCES 



ALR. Right of surviving spouse, person- 
ally incompetent to serve as administra- 
tor because of being younger than age 
specified, to nominate administrator. 64 
A.L.R.2d 1152. 

Propriety of court's appointment, as ad- 
ministrator of decedent's estate, of 
stranger rather than person having stat- 
utory preference. 84 A.L.R.3d 707. 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 158 et seq. 

8 Am. Jur. Legal Forms 2d (Rev), Execu- 
tors and Administrators §§ 104:11 et seq. 
(appointment, qualification, and tenure). 

CJS. 33 C.J.S., Executors and Adminis- 
trators §§ 33 et seq. 



§ 91-7-65. Persons disqualified to administer. 

Letters of administration shall not be granted to a person under the age of 
eighteen (18) years, of unsound mind, or convicted of any felony. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (60); 1857, ch. 60, art. 62; 
1871, § 1090; 1880, § 1994; 1892, § 1851; Laws, 1906, § 2025; Hemingway's 
1917, § 1690; Laws, 1930, § 1630; Laws, 1942, § 526; Laws, 1976, ch. 375, eff 
from and after July 1, 1976. 

Cross References — Grant of letters testamentary to person under twenty-one, see 
§ 91-7-35. 

JUDICIAL DECISIONS 



In general. 

An infant can neither be an administra- 



tor nor dictate who shall be appointed. 
Rea v. Englesing, 56 Miss. 463 (1879). 



RESEARCH REFERENCES 



ALR. Construction and effect of statu- 
tory provision that no person is competent 
to act as executor or administrator whom 
court finds incompetent by reason of want 
of integrity. 73 A.L.R.2d 458. 

Adverse interest or position as disqual- 
ification for appointment of administrator, 



executor, or other personal representa- 
tive. 11 A.L.R.4th 638. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 198, 199. 

CJS. 33 C.J.S., Executors and Adminis- 
trators §§ 44-49. 



126 



Executors and Administrators § 91-7-67 

§ 91-7-67. Oath and bond of administrator. 

The person to whom administration is granted, at or prior to the granting 
thereof, shall take and prescribe the following oath: 

"I do swear that , deceased, died without any will, as far as I 

know or believe, and that I, if and when appointed, will well and truly 
administer all the goods, chattels, and credits of the deceased, and pay his 
debts as far as his goods, chattels, and credits will extend and the law 
requires me, and that I will make a true and perfect inventory of the said 
goods, chattels, and credits, and a just account, when thereto required. So 
help me God." 

He shall give bond in a penalty equal to the value of all the personal estate, 
with such sureties as may be approved by the court or clerk, payable to the 
state, with condition in form or to the effect following, to wit: 

"The condition of this bond is, that if the above bound , as 

administrator of the goods, chattels, rights, and credits of , 

deceased, shall faithfully discharge all the duties required of him by law, 
then this obligation shall be void." 

The chancellor, in termtime or in vacation, may waive or reduce the bond 
if the administrator is the decedent's sole heir or if all the heirs are competent 
and present their sworn petition to waive or reduce such bond. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (56); 1857, ch. 60, art. 63; 
1871, § 1118; 1880, § 1995; 1892, § 1852; Laws, 1906, § 2026; Hemingway's 
1917, § 1691; Laws, 1930, § 1631; Laws, 1942, § 527; Laws, 1975, ch. 462; 
Laws, 2001, ch. 422, § 3, eff from and after July 1, 2001. 

Cross References — Oath and bond of executor or administrator with will annexed, 
see § 91-7-41. 

Bond and oath of county administrator, see § 91-7-75. 

Recording of bond, see § 91-7-311. 

New bonds for executors and administrators, see §§ 91-7-315, 91-7-317. 

Credit for cost of bond, see § 91-7-319. 

Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

JUDICIAL DECISIONS 

1. In general. from probating his claim, whereby it was 

That an administrator wrote designing lost, is not a breach of his bond. Nagle v. 

and misleading letters intending to pre- Ball, 71 Miss. 330, 13 So. 929 (1893). 
vent, and which did prevent, a creditor 

RESEARCH REFERENCES 

ALR. What funds, not part of the es- Am Jur. 31 Am. Jur. 2d, Executors and 

tate, are received under color of office so as Administrators §§ 261, 312, 313, 321, 

to render liable surety on executor's or 322. 
administrator's bond. 82 A.L.R.3d 869. 

127 



§ 91-7-68 Trusts and Estates 

10 Am. Jur. PI & Pr Forms (Rev), Ex- and Administrators §§ 104:311 et seq. 

ecutors and Administrators, Forms 311 et (administration bonds), 

seq. (administration bonds). CJS. 33 C.J.S., Executors and Adminis- 

8 Am. Jur. Legal Forms 2d, Executors trators §§ 70-77. 

§ 91-7-68. Administrator of estate of intestate under legal 
disability. 

Upon the death intestate of any person under legal disability for whom a 
guardian, conservator or other fiduciary has been appointed by a court of 
competent jurisdiction and is serving, the judge or clerk of such court, upon 
proof of death of such person, may issue letters of administration to the already 
acting fiduciary, unless some relative or other person entitled to administer the 
estate shall within thirty days after the death of such person apply to the court 
for such administration. Upon the issuance of letters of administration to the 
already acting fiduciary, such fiduciary shall thereupon publish notice to 
creditors and administer the decedent's estate in the manner required by law. 
Such fiduciary's bond shall continue in force and he shall make only one (1) 
final account, unless the court, on the motion of any interested party or its own 
motion, shall require additional bond or accounting. 

SOURCES: Codes, 1942, § 525.5; Laws, 1972, ch. 386, § 1, eff from and after 
passage (approved April 26, 1972). 

JUDICIAL DECISIONS 

1. In general. value of the life estate following the life 

The guardian of a life tenant did not tenant's death, since there is no adminis- 

automatically become the administrator trator of the estate of a deceased person 

of the life tenant's estate on her death until one is qualified and appointed by the 

pursuant to § 91-7-68, and thus she was court. Madison v. Vintage Petro., Inc., 872 

not the proper party to prosecute an ac- F. Supp. 340 (S.D. Miss. 1994), dismissed, 

tion to recover damages for personal in- 85 F.3d 625 (5th Cir. 1996), aff'd, 87 F.3d 

jury, emotional distress, and reduction in 1311 (5th Cir. 1996). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 33 C.J.S., Executors and Adminis- 
Administrators § 14. trators § 10. 

§ 91-7-69. Administration de bonis non. 

If an executor or administrator die, resign, be removed, or become 
incompetent, letters of administration de bonis non with the will annexed, or 
de bonis non, shall be granted to the person entitled, and he shall proceed in 
the administration of the estate. The letters, bond, and oath shall be in the 
common form, substituting proper words to show the character of the admin- 
istration. The executor of an executor shall not be entitled, in right of his office, 
to administration de bonis non of the first estate; but such executor, or the 

128 



Executors and Administrators 



§ 91-7-69 



administrator of an executor, or the executor or administrator of an adminis- 
trator shall settle the accounts of his testator or intestate in the administration 
of the first estate, and for that purpose shall be amenable to the jurisdiction of 
the court. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (59); 1857, ch. 60, art. 65; 
1871, § 1120; 1880, § 1997; 1892, § 1856; Laws, 1906, § 2031; Hemingway's 
1917, § 1696; Laws, 1930, § 1632; Laws, 1942, § 528. 

Cross References — Chancery clerk's power to grant letters of administration de 
bonis non, see §§ 9-5-141 et seq. 

JUDICIAL DECISIONS 



1. In general. 

2. Powers and duties of administrator 

de bonis non. 

3. Powers and duties of administrator of 

administrator. 

1. In general. 

Where administrator after final account 
and approval misappropriated money and 
absconded, distributees could sue on bond 
without administrator de bonis non. Davis 
v. State, 118 Miss. 577, 79 So. 764 (1918). 

It is not necessary to give notice to the 
legatees or wait until final settlement by 
the executor in order to appoint an admin- 
istrator de bonis non cum testamento an- 
nexo. Sivley v. Summers, 57 Miss. 712 
(1880). 

2. Powers and duties of administrator 

de bonis non. 

Although administratrix de bonis non is 
only liable for unadministered assets of 
estate coming into her hands, she must 
file final account and have it approved. 
Hayes v. Holman, 165 Miss. 494, 144 So. 
690 (1932). 

Administrator de bonis non entitled to 
amend so as to sue for value of property 
sold defendant where note given was ex- 
cluded because payable to original admin- 
istrator individually. Barnes v. Barnes, 
109 Miss. 273, 68 So. 248 (1915). 

3. Powers and duties of administrator 

of administrator. 

Where administrator of deceased ad- 
ministrator did not file account required 
and evidence showed money was paid out 
by deceased administrator without show- 
ing purposes, estate of deceased adminis- 



trator and his bondsmen were liable to 
heirs and distributees, payment to be en- 
forced out of original property of adminis- 
trator if legally possible and in default 
thereof, out of bondsmen of deceased ad- 
ministrator. Hayes v. National Sur. Co., 
169 Miss. 676, 153 So. 515 (1934). 

Bondsmen of deceased administrator's 
administrator, who failed to file account 
required by statute, were liable to 
distributees of first estate for all conse- 
quences of failure of principal as adminis- 
trator to faithfully discharge duties re- 
quired. Hayes v. National Sur. Co., 169 
Miss. 676, 153 So. 515 (1934). 

Where administrator of administrator 
did not file account as required, 
distributees of first estate could recover 
against bondsmen of administrator of ad- 
ministrator though demand was not pro- 
bated, since demand was a liability, not a 
claim. Hayes v. National Sur. Co., 169 
Miss. 676, 153 So. 515 (1934). 

Until account by administrator of ad- 
ministrator has been approved, adminis- 
trator of administrator must hold in his 
hands sufficient assets of estate of his 
decedent to pay balance due to first estate, 
whether such assets are derivative of first 
estate, or whether original property of 
deceased administrator. Hayes v. National 
Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

Account by administrator of adminis- 
trator must be filed with reasonable 
promptness. Hayes v. National Sur. Co., 
169 Miss. 676, 153 So. 515 (1934). 

Courts have no authority to excuse per- 
formance of duty of administrator of ad- 
ministrator to settle accounts of deceased 



129 



§ 91-7-71 Trusts and Estates 

administrator, regardless of circum- eluding those in matter of notice to all 

stances. Hayes v. National Sur. Co., 169 proper parties in interest, must be ob- 

Miss. 676, 153 So. 515 (1934). served which appertain to final accounts. 

In filing of account by administrator of Hayes v. National Sur. Co., 169 Miss. 676, 

administrator, the same requirements, in- 153 So. 515 (1934). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and Forms 1271 et seq. (administration de 

Administrators §§ 1014 et seq. bonis non with will annexed). 

10 Am. Jur. PI & Pr Forms (Rev), Ex- CJS. 34 C.J.S., Executors and Adminis- 

ecutors and Administrators, Forms 1161 trators §§ 935 et seq. 
et seq. (administration de bonis non); 

§ 91-7-71. Rights of administrator de bonis non. 

Every administrator de bonis non shall be entitled to all choses in action 
taken or held by any former executor or administrator, and may institute suit 
therefor and, if necessary, enjoin the former executor or administrator from 
collecting the same. He may sue on the bond of any former executor or 
administrator of the estate, where the estate is insolvent or where suit and 
recovery may be necessary for the payment of the debts of the estate, for any 
money due by the former executor or administrator and which should have 
been accounted for and paid over by him. Where it shall be necessary for the 
payment of debts of the estate, an administrator de bonis non may except to 
the final account of a former executor or administrator, or surcharge and falsify 
an annual or partial settlement of such former executor or administrator, or 
file and maintain a bill to review any order or decree of the court allowing the 
account of such executor or administrator, in the same manner that 
distributees or legatees may do. The court or chancellor may require of an 
administrator de bonis non an additional bond to cover the money sought to be 
recovered by any such proceedings. 

SOURCES: Codes, 1857, ch. 60, art. 135; 1871, § 1193; 1880, § 1998; 1892, § 1857; 
Laws, 1906, § 2032; Hemingway's 1917, § 1697; Laws, 1930, § 1633; Laws, 
1942, § 529. 

Cross References — Additional provisions governing the conduct of executors, 
administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et 
seq. 

JUDICIAL DECISIONS 

1. In general. National Sur. Corp. v. Laughlin, 178 Miss. 

Administrator's right to recover funds 499, 172 So. 490 (1937). 

wrongfully paid to deceased's sisters and While, under statute, administrator de 

to guardian of deceased's illegitimate bonis non is entitled to all choses in action 

child passed to administratrix de bonis taken or held by former administrator, 

non upon her appointment, and it was her and can maintain suit therefor, he can sue 

right and duty to recover such funds, on bond of former administrator only in 

130 



Executors and Administrators § 91-7-75 

case estate is insolvent or where suit and that recovery was necessary for payment 

recovery may be necessary for payment of of debts. National Sur. Corp. v. Laughlin, 

debts of estate. National Sur. Corp. v. 178 Miss. 499, 172 So. 490 (1937). 

Laughlin, 178 Miss. 499, 172 So. 490 The right of the administrator de bonis 

(1937). non to sue on the bond will be lost if the 

Under statute, administrator de bonis debts against the estate become barred or 

non could not sue on bond of former ad- be paid, but the right survives to the 

ministrator de bonis non, in absence of distributees. Weir v. Monahan, 67 Miss, 

allegation that estate was insolvent or 434, 7 So. 291 (1890). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and attorney to executor or administrator of 
Administrators §§ 1029 et seq. estate as to duties and liabilities). 

8 Am. Jur. Legal Forms 2d, Executors 
and Administrators § 104:56 (letter from 

§ 91-7-73. County administrator. 

It shall be the duty of the chancellor to appoint for each county of his 
district an officer to be styled "county administrator," to hold his office four 
years, and whose appointment shall be entered on the minutes of the court. 

SOURCES: Codes, 1871, § 1091; 1880, § 1999; 1892, § 1846; Laws, 1906, § 2020; 
Hemingway's 1917, § 1685; Laws, 1930, § 1634; Laws, 1942, § 530. 

§ 91-7-75. Bond and oath of county administrator. 

Before a county administrator shall perform any of the duties or functions 
of the office, and before any letters shall be granted to him, he shall execute 
and file in the office of the clerk of the chancery court a bond with two (2) or 
more sufficient sureties, to be approved by the chancellor in termtime or 
vacation, in a penalty of Five Thousand Dollars ($5,000.00) payable to the 
state, conditioned that he will discharge all the duties of the office of county 
administrator, which bond may be sued on at the instance of any person 
interested. He shall also take an oath at or prior to the granting of letters of 
administration, to be filed in the clerk's office, to administer according to law 
every estate which may be committed to his charge, and that he will account 
for and pay over all monies in his hands by virtue of his office when thereto 
required by order of the court. 

SOURCES: Codes, 1871, § 1093; 1880, § 2001; 1892, § 1847; Laws, 1906, § 2021; 
Hemingway's 1917, § 1686; Laws, 1930, § 1635; Laws, 1942, § 531; Laws, 
2001, ch. 422, § 4, eff from and after July 1, 2001. 

Cross References — Oath and bond of executor or administrator with will annexed, 
see § 91-7-41. 

Oath and bond of administrator, see § 91-7-67. 

Recording of bonds, see § 91-7-311. 

New bonds of executors and administrators, see §§ 91-7-315, 91-7-317. 

Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

131 



§ 91-7-77 Trusts and Estates 

§ 91-7-77. Additional bond may be required. 

Whenever it shall appear that the penalty of the bond of the county 
administrator, as fixed, is not sufficient in amount to secure a faithful 
discharge of the duties of the office, it shall be the duty of the court or the 
chancellor, or the clerk in vacation, after five days' notice given, to require him 
to give an additional bond in such penalty as the chancellor or clerk may deem 
sufficient to secure the rights of all parties interested; and on noncompliance, 
he may be removed from office. 

SOURCES: Codes, 1871, § 1095; 1880, § 2002; 1892, § 1848; Laws, 1906, § 2022; 
Hemingway's 1917, § 1687; Laws, 1930, § 1636; Laws, 1942, § 532. 

RESEARCH REFERENCES 

ALR. What funds, not part of the es- Am Jur. 8 Am. Jur. Legal Forms 2d, 
tate, are received under color of office so as Executors and Administrators § 104:318 
to render liable surety on executor's or (administrator's or executor's bond — con- 
administrator's bond. 82 A.L.R.3d 869. dition — additional bond required). 

§ 91-7-79. Letters granted to county administrator. 

When it shall appear that any person has died, in this state or out of it, and 
has left real or personal property in this state, and some person has not applied 
for letters testamentary or of administration, the administration of the estate, 
after the expiration of sixty days from the death of such person, shall be 
committed to the county administrator, to whom letters of administration, 
administrator de bonis non, administration with the will annexed, or as the 
case may require, shall be granted. He shall administer the estate, as in other 
cases, under the direction of the court, with the same rights and liabilities as 
executors and other administrators. The county administrator shall not be 
bound to incur or be liable for costs, except such as the estate in his hands, in 
excess of his commissions shall be sufficient to pay. On the final settlement of 
the estate, he shall be allowed by the court, as his commissions, a sum not to 
exceed ten per cent on the whole estate administered. The county administra- 
tor may also be appointed temporary administrator pending an appeal from 
the grant of letters testamentary or of administration, and administrator to 
institute suit in proper cases. He shall be liable in all cases on his official bond 
for his acts, and another bond need not be executed by him in any case unless, 
his official bond being insufficient, the court shall require an additional bond, 
or where he may be required to give bond to account for the proceeds of a sale 
of land. 

SOURCES: Codes, 1871, § 1092; 1880, §§ 2004, 2005; 1892, § 1858; Laws, 1906, 
§ 2033; Hemingway's 1917, § 1698; Laws, 1930, § 1637; Laws, 1942, § 533. 

Cross References — Powers of chancery clerk generally, see §§ 9-5-141 et seq. 
County administrator acting as escheator, see § 89-11-3. 



132 



Executors and Administrators § 91-7-83 

RESEARCH REFERENCES 

ALR. Powers and duties of public ad- ecutors and Administrators, Forms 1321 

ministrator. 56 A.L.R.2d 1183. et seq. (public administrators). 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 

Administrators §§ 1095 et seq. trators §§ 974 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 

§ 91-7-81. Accounts to be filed when office vacated. 

Should the county administrator resign his office or otherwise vacate it, he 
shall forthwith file an account of his administration in each case. Should such 
officer die, settlements of all estates committed to him shall be made by his 
executor or administrator. 

SOURCES: Codes, 1871, § 1094; 1880, § 2006; 1892, § 1849; Laws, 1906, § 2023; 
Hemingway's 1917, § 1688; Laws, 1930, § 1638; Laws, 1942, § 534. 

Cross References — Accounts generally, see § 91-7-277. 
Contents of final accounts, see § 91-7-291. 

Requirement that account filed by administrator must be personally signed and 
sworn to by him, see Miss. Uniform Chancery Court Rule 6.14. 

§ 91-7-83. Sheriff administrator in certain cases. 

If it appears that any person has died, in this state or out of it, and has left 
property, and some person will not qualify as executor or administrator, the 
court, or clerk in vacation, shall appoint the sheriff to be administrator, who 
shall administer the estate. The sheriff shall not be bound to incur any cost 
except out of the estate, and he shall be allowed not more than ten per centum 
on the amount thereof. Any sheriff who may be appointed administrator shall 
make settlement of his administration, if he hath not done so before, at the 
termination of his office and deliver whatever property he may have of the 
estate at the time to his successor in office, or to such other person as may be 
appointed administrator. His official bond as sheriff shall be security for his 
faithful administration of such estate, and he shall not be required to execute 
any other bond, except to account for the proceeds of a sale of land. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 19 (1); 1857, ch. 60, art. 68; 
1871, § 1092; 1880, § 2007; 1892, § 1859; Laws, 1906, § 2034; Hemingway's 
1917, § 1699; Laws, 1930, § 1639; Laws, 1942, § 535. 

Cross References — Sheriffs generally, see §§ 19-25-1 et seq. 
Delivery of property levied on by sheriff to successor, see § 19-25-57. 

JUDICIAL DECISIONS 

1. In general. 1942, § 535], at instance of nonresident 

Appointment of the sheriff as adminis- creditors, may properly be denied where 

trator d.b.n. under this section [Code local administration has been completed. 

133 



§ 91-7-85 Trusts and Estates 

Stargell v. White, 234 Miss. 601, 107 So. of his successor, although he be still ame- 

2d 125 (1958). nable to account for his acts as adminis- 

The power of the sheriff to act as admin- trator. Cox v. Martin, 75 Miss. 229, 21 So. 

istrator ceases with his term of office, and 611, 65 Am. St. R. 604 (1897). 
a suit by him may be revived in the name 

§ 91-7-85. Removal and surrender of trust. 

Every executor or administrator may be removed if he become disquali- 
fied, or for improper conduct in office, at the instance of any person interested, 
on five days' notice to such executor or administrator; or may surrender the 
trust, and thereupon shall give the proper notice to the distributees or legatees 
and settle with the court. In case of removal or resignation, administration 
shall be granted as in case of the death of the executor or administrator, and 
with like effect. An executor or administrator who may be removed, or who may 
surrender his trust, shall continue to be answerable to the court until his final 
settlement and satisfaction be made, and until that time shall be liable on his 
bond. 

SOURCES: Codes, 1857, ch. 60, art. 67; 1871, § 1122; 1880, § 2008; 1892, § 1860; 
Laws, 1906, § 2035; Hemingway's 1917, § 1700; Laws, 1930, § 1640; Laws, 
1942, § 536. 

Cross References — Removal for failure to account, see §§ 91-7-277, 91-7-283. 
Removal for failure to furnish new bond when required, see §§ 91-7-315, 91-7-317. 
Removal of county administrator for failure to provide additional bond, see § 91-7-77. 
Removal for failure to return inventory, see § 91-7-105. 
Suits by or against administrator, see § 91-7-241. 
Hearing on removal proceedings, see § 91-7-289. 

JUDICIAL DECISIONS 

1. In general. perform his duties pending the outcome of 

Chancellor's removal of executrix of de- the contest, but since the petition for ap- 

cedent's estate was amply supported by pointment of the temporary administrator 

record showing that she had paid unpro- was not brought under this section [Code 

bated claims, had failed to timely file 1942, § 536] , if the will is upheld, appel- 

estate tax returns, and had paid attor- lant would be entitled to resume the office 

ney's fees without court approval, as well of executor, unless and until he is removed 

as conflicts of interest in the matter of permanently under appropriate proceed- 

administering the estate. Harper v. Har- i ngs< Sandifer v. Sandifer, 237 Miss. 464, 

per, 491 So. 2d 189 (Miss. 1986). 115 So . 2d 46 (1959). 

Since the chancellor had the power to Supreme court will not interfere with 

appoint a temporary administrator it fol- action of chancery court in removing 

lowed that if an executor had qualified, trustee on its own mot{ unless palpably 

such executor must be removed during the unjugt Nutt v State? 96 Migs 473; 51 So 

pendency of the will contest in order to ,q-, qqiq) 
permit the temporary administrator to 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and 9A Am. Jur. PI & Pr Forms (Rev), Ex- 
Administrators §§ 275, 279, 280. ecutors and Administrators, Forms 261 et 

134 



Executors and Administrators 



§ 91-7-87 



seq. (termination of authority); Forms 301 
et seq. (removal). 

8 Am. Jur. Legal Forms 2d, Executors 
and Administrators, §§ 104:42 et seq. (re- 
nunciation and resignation). 



CJS. 33 C.J.S., Executors and Adminis- 
trators §§ 104 et seq. 



§ 91-7-87. Administration revoked by proof of will and grant 
of letters testamentary. 

If a will shall be found and probated and letters testamentary be granted 
thereon, the same shall be a revocation of the administration; but acts lawfully 
done by the administrator without actual notice of such revocation shall be 
valid and binding. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (55); 1857, ch. 60, art. 64; 
1871, § 1119; 1880, § 1996; 1892, § 1853; Laws, 1906, § 2027; Hemingway's 
1917, § 1692; Laws, 1930, § 1641; Laws, 1942, § 537. 

JUDICIAL DECISIONS 



1. In general. 

Where an instrument was considered to 
be a deed and there was a grant of intes- 
tate administration, this was not res judi- 
cata on the issue whether testator died 
leaving a will, and the grant of testator 
administration is not a bar to the subse- 
quent probate of a will. White v. Inman, 
212 Miss. 237, 54 So. 2d 375, 30 A.L.R.2d 
380 (1951). 

Chancery court has power under Code 
1942, § 520, to continue widow of de- 
ceased testator as administratrix for pur- 
pose of sale of land to pay debts in absence 
of sufficient personalty therefor, and fail- 
ure of the court, after the existence of the 
will became known, to change the letters 
of administration granted to widow and 
sole heir at law to letters as temporary 
administratrix pending a will contest, did 



not render the action of the court abso- 
lutely void in ordering the land sold by 
her, but only voidable at most, since the 
court had constitutional jurisdiction of the 
subject-matter and jurisdiction of all the 
parties in interest. Gill v. Johnson, 206 
Miss. 707, 40 So. 2d 600 (1949). 

Where testimony was sufficient to have 
will probated in solemn form, chancery 
court had authority to admit will to pro- 
bate, grant letters testamentary to execu- 
tor named therein, and set aside appoint- 
ment of administratrix theretofore made 
under statute providing that if a will shall 
be found and probated, and letters testa- 
mentary granted thereon, the same shall 
be a revocation of administration. Austin 
v. Patrick, 179 Miss. 718, 176 So. 714 
(1937). 



RESEARCH REFERENCES 



ALR. Statutes dealing with existing in- 
testate administration, upon discovery of 
will. 65 A.L.R.2d 1201. 

Right to probate subsequently discov- 
ered will as affected by completed prior 
proceedings in intestate administration. 2 
A.L.R.4th 1315. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators, §§ 275, 279, 280. 



9A Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Form 273 
(petition or application to revoke letters of 
administration and for probate of will and 
issuance of letters testamentary). 

CJS. 33 C.J.S., Executors and Adminis- 
trators § 104. 



135 



§ 91-7-89 Trusts and Estates 

§ 91-7-89. Letters of certain nonresidents revoked. 

If letters testamentary or of administration be granted to any person not 
a resident of the state, or if any executor or administrator after his appoint- 
ment remove out of the state, and if such executor or administrator refuse or 
neglect to settle his accounts annually or neglect the due administration 
thereof in any other respect, the court, after publication made and proof 
thereof as in other cases, or personal notice, may revoke the letters of such 
executor or administrator and proceed to grant administration de bonis non as 
if such executor or administrator had died or resigned. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 21 (7); 1857, ch. 60, art. 130; 
1871, § 1188; 1880, § 2009; 1892, § 1861; Laws, 1906, § 2036; Hemingway's 
1917, § 1701; Laws, 1930, § 1642; Laws, 1942, § 538. 

§ 91-7-91. Assets defined; unsecured creditors to give notice. 

The goods, chattels, personal estate, choses in action and money of the 
deceased, or which may have accrued to his estate after his death from the sale 
of property, real, personal or otherwise, and the rent of lands accruing during 
the year of his death, whether he died testate or intestate, shall be assets and 
shall stand chargeable with all the just debts, funeral expenses of the 
deceased, and the expenses of settling the estate. The lands of the testator or 
intestate shall also stand chargeable for the debts and such expenses over and 
above what the personal estate may be sufficient to pay, and may be subjected 
thereto in the manner hereinafter directed. Provided, however, that in cases 
where no administration has been or shall be commenced on the estate of the 
decedent within three (3) years after his death, no creditor of the decedent 
shall be entitled to a lien or any claim whatsoever on any real property of the 
decedent, or the proceeds therefrom, against purchasers or encumbrancers for 
value of the heirs of the decedent unless such creditor shall, within three (3) 
years and ninety (90) days from the date of the death of the decedent, file on 
the lis pendens docket in the office of the clerk of the chancery court of the 
county in which said land is located notice of his claim, containing the name of 
the decedent, a brief statement of the nature, amount and maturity date of his 
claim and a description of the real property sought to be charged therewith. 
The provisions of this section requiring the filing of notice shall not apply to 
any secured creditor having a recorded lien on said property. 

SOURCES: Codes, 1857, ch. 60, art. 80; 1871, § 1134; 1880, § 2025; 1892, § 1881; 
Laws, 1906, § 2056; Hemingway's 1917, § 1721; Laws, 1930, § 1643; Laws, 
1942, § 539; Laws, 1938, ch. 262; Laws, 1975, ch. 373, § 3, eff from and after 
January 1, 1976. 

Cross References — Payment to heirs of money in savings association account 
without administration, see § 81-12-143. 
Rent as asset, see § 89-7-11. 

Liability of exempt property for debts of decedent, see §§ 91-1-21 et seq. 
Summary proceeding to discover assets, see § 91-7-103. 
Receipt of property in compromise of claim, see § 91-7-229. 
Use of assets by fiduciary, see § 91-7-253. 

136 



Executors and Administrators 



§ 91-7-91 



JUDICIAL DECISIONS 



1. Construction and application in gen- 

eral. 

2. Rents or other income as assets. 

3. Particular claims or charges as debts. 

4. Intent of testator. 

1. Construction and application in 
general. 

When executor bank obtains Missis- 
sippi court decision under § 91-7-91 re- 
quiring that federal estate taxes, debts 
and expenses of estate be paid out of 
personalty of estate, starting with re- 
siduum, and bank subsequently obtains 
conflicting court decision in another state 
requiring that tax liability of estate be 
apportioned equally among all estate ben- 
eficiaries, whether of real or personal 
property, pro rata, federal court in which 
bank files interpleader action will give full 
faith and credit and preclusive effect to 
latter state court decision. First Tennes- 
see Bank v. Smith, 766 F.2d 255 (6th Cir. 
Tenn. 1985). 

In the absence of a direction to the 
contrary by the testator, estate taxes must 
be paid first from personal property not 
specifically devised by will, secondly from 
other personalty of the estate, and thirdly, 
if necessary, from the real estate. Stovall 
v. Stovall, 360 So. 2d 679 (Miss. 1978). 

Having properly assumed jurisdiction of 
the will of a non-resident testatrix, the 
Mississippi court was not required by co- 
mity to defer to the courts of the domicil- 
iary state on the issue of which of the 
parties should bear the burden of the 
estate taxes and other debts of the estate. 
Crum v. First Nat'l Bank, 321 So. 2d 287 
(Miss. 1975), cert, denied, 439 U.S. 883, 99 

5. Ct. 223, 58 L. Ed. 2d 195 (1978). 
Property held by a decedent as trustee 

is no part of the assets of his estate, but 
his personal representative becomes 
trustee ex officio. Holliman v. Demoville, 
243 Miss. 542, 138 So. 2d 734 (1962). 

Administration of decedent's estate cov- 
ers only personal property belonging to 
estate and real property is not involved 
unless and until personal property be- 
comes insufficient to pay debts and it 
becomes necessary to resort to land for 
payment of debts of estate. Barnes v. 
Rogers, 206 Miss. 887, 41 So. 2d 58 (1949). 



The term "assets," as applied to dece- 
dent's estate and as used in this section 
[Code 1942, § 539], means property which 
is available, if necessary, for the payment 
of debts and expenses. Gaines v. Klein, 
203 Miss. 271, 34 So. 2d 489 (1948). 

Upon death of owner, personalty de- 
scends to personal representative for pay- 
ment of debts and legacies, and realty 
goes to heirs and devisees. Gidden v. 
Gidden, 176 Miss. 98, 167 So. 785 (1936). 

Realty goes to heirs and devisees and is 
not subject to debts until personalty is 
exhausted, unless will expressly provides 
otherwise. Gidden v. Gidden, 176 Miss. 98, 
167 So. 785 (1936). 

Lien of creditors of decedent under stat- 
ute held charge only on right, title, and 
interest of deceased in land at date of 
death. Blum v. Planters' Bank & Trust 
Co., 161 Miss. 226, 135 So. 353 (1931). 

Lien of creditors on lands of decedent is 
not superior to rights acquired by third 
parties in such land before death of dece- 
dent. Blum v. Planters' Bank & Trust Co., 
161 Miss. 226, 135 So. 353 (1931). 

Bank becoming creditor before lands 
were conveyed to decedent acquired no 
right to subject land to payment of debts 
superior to outstanding liens thereon or 
equities therein, recorded or unrecorded, 
existing at grantee's death. Blum v. Plant- 
ers' Bank & Trust Co., 161 Miss. 226, 135 
So. 353 (1931). 

Bequest of personalty not theretofore 
specifically willed was residuum and 
chargeable with payment of debts to exon- 
eration of real estate. Anderson v. Gift, 
156 Miss. 736, 126 So. 656 (1930). 

On accounting administrator is liable 
for actual value of property coming into 
his hands, not value fixed by appraisers. 
Davis v. Blumenberg, 107 Miss. 432, 65 
So. 503 (1914). 

Under this section [Code 1942, § 539] 
and Code 1942, § 588 the personal estate 
must be exhausted before the lands may 
be resorted to for the payment of debts, 
unless a contrary intent be manifested in 
the will of the decedent. Gordon v. James, 
86 Miss. 719, 39 So. 18 (1905). 

An administrator, by consent of the 
heirs, may lease out decedent's lands for 



137 



§ 91-7-91 



Trusts and Estates 



the purpose of paying his debts. Ashley v. 
Young, 79 Miss. 129, 29 So. 822 (1901). 

2. Rents or other income as assets. 

This section [Code 1942, § 539] simply 
makes rents liable for the debts and ex- 
penses of administration if needed for that 
purpose; if rents are collected from prop- 
erty specifically devised, they are the 
property of the devisee and not liable for 
such debts and expenses until the re- 
siduum of the estate has been exhausted. 
Gaines v. Klein, 203 Miss. 271, 34 So. 2d 
489 (1948). 

Where testatrix in devise of real estate 
provided for possession thereof in the de- 
visee immediately upon probate of her will 
if she should die before the month of April 
in any year thereafter, and she died prior 
to April, the rents accruing from such 
realty during the year of her death did not 
become part of her personal estate so as to 
be chargeable for her debts, this section 
[Code 1942, § 539] being inapplicable un- 
der such circumstances. Eatherly v. Winn, 
185 Miss. 742, 189 So. 99 (1939). 

Where a testatrix provided for the pay- 
ment of all her just and legal debts, taxes 
on real estate accruing and due for the 
year prior to her death were to be paid by 
her executors and were not chargeable 
against the devisee of such real estate 
devised to him subject to one-half of the 
mortgage debt thereon. Eatherly v. Winn, 
185 Miss. 742, 189 So. 99 (1939). 

Where will did not confer authority, 
neither executor nor administrator with 
the will annexed had authority to collect 
rents on realty except during year of tes- 
tator's death. Fidelity & Deposit Co. v. 
Doughtry, 181 Miss. 586, 179 So. 846 
(1938). 

Rent accruing on decedent's realty dur- 
ing year of decedent's death held asset in 
administrator's hands. Wright v. Wright, 
160 Miss. 235, 134 So. 197 (1931). 

Rent accruing on land in Mississippi is 
a debt governed by its laws. Richardson v. 
Neblett, 122 Miss. 723, 84 So. 695, 10 
A.L.R. 272 (1920). 

Under this section [Code 1942, § 539] 
and Code 1942, § 577 rents accruing dur- 
ing the year of decedent's death, and crops 
remaining on the lands at the date of his 
death, whether gathered or still in the 
field, and whether they are matured or 



not, are assets of decedent, whether tes- 
tate or intestate, and as such pass into the 
hands of the personal representative for 
the payment of the debts and the expenses 
of administration. Gordon v. James, 86 
Miss. 719, 39 So. 18 (1905). 

3. Particular claims or charges as 
debts. 

Since all the personal and real property 
of a deceased surety of an administratrix 
of a veteran's estate were assets of his 
estate and chargeable as such with his 
debts, a proceeding to enforce such charge 
against the property in the hands of such 
deceased surety's sole distributee because 
of administratrix's maladministration of 
the veteran's estate must be recognized. 
Hill v. Ouzts, 190 Miss. 341, 200 So. 254 
(1941). 

When bank became insolvent and 
closed, deceased stockholder's double lia- 
bility matured, standing in same class as 
other unsecured debts, and became charge 
on estate's entire personalty and realty. 
Gift v. Love, 164 Miss. 442, 144 So. 562, 86 
A.L.R. 63 (1932). 

Heirs hold legal title to land subject to 
charge of ancestor's debts, though indebt- 
edness be not ascertained at death. Gift v. 
Love, 164 Miss. 442, 144 So. 562, 86 A.L.R. 
63 (1932). 

Where devise was void and deceased 
bank stockholder's heirs obtained judg- 
ment against testamentary trustee for 
proceeds of land sold, judgment claim held 
inferior to bank's double liability claim on 
stock, and heirs took remaining land sub- 
ject to such liability. Gift v. Love, 164 Miss. 
442, 144 So. 562, 86 A.L.R. 63 (1932). 

Before bank went into liquidation, no 
compromise settlement could be made be- 
tween bank, stockholder's heirs, and tes- 
tamentary trustee, which would result in 
defeating bank's right to enforce double 
liability. Gift v. Love, 164 Miss. 442, 144 
So. 562, 86 A.L.R. 63(1932). 

Bank's quitclaim deed of deceased 
stockholder's and debtor's land to heirs in 
settlement transaction, whereby heirs 
took certain assets in satisfaction of their 
judgment against estate which was infe- 
rior to bank's claim, held not supported by 
consideration. Gift v. Love, 164 Miss. 442, 
144 So. 562, 86 A.L.R. 63 (1932). 



138 



Executors and Administrators 



§ 91-7-93 



That bank, without consideration, quit- 
claimed deceased bank stockholder's land 
to heirs, pursuant to compromise settle- 
ment, and took bank stock in satisfaction 
of bank's claim for loan held not to pre- 
clude superintendent of banks, after bank 
closed, from enforcing stockholder's dou- 
ble liability against land quitclaimed. Gift 
v. Love, 164 Miss. 442, 144 So. 562, 86 
A.L.R. 63 (1932). 

The liability of a surety on a guardian's 
bond is a debt within the statute, charging 
the lands of a decedent with his estate 
over and above what his personal estate 
may be sufficient to pay. Savings Bldg. & 
Loan Ass'n v. Tart, 81 Miss. 276, 32 So. 
115 (1902). 

4. Intent of testator. 

A will manifests the testator's intention 
that the property transferred to his wife 
be free of estate taxes where "Item IV" 
exempts from the payment of estate taxes 
and administration costs those bequests 
made earlier in the will to his wife and 
"Item III" specifically states that his wife 
is to receive $4,800 a year "free of any 
debts" and therefore this property cannot 
bear the burden of estate taxes. Waldrup 
v. United States, 499 F. Supp. 820 (N.D. 
Miss. 1980). 

This statute does not prohibit the testa- 
tor himself from making, by his will, his 
own directions as to the order or priority 



of the application of his estate in the 
payment of his debts. Temple v. First Nat'l 
Bank, 202 Miss. 92, 30 So. 2d 605 (1947). 

Notwithstanding the provisions of this 
section [Code 1942, § 539], a testator may 
charge his real property with the entire 
burden of the payment of his debts to the 
complete exoneration of his personalty, if 
and when the real estate is sufficient to do 
so, or he may apportion the burden be- 
tween real and personal property, the will 
and not the statute controlling as between 
legatees, devisees, and distributees. Tem- 
ple v. First Nat'l Bank, 202 Miss. 92, 30 
So. 2d 605 (1947). 

This statute in no way affects the rule 
that when a testator makes bequests of 
his personalty and no devise of his realty, 
the latter is charged with his debts to the 
exoneration of the bequests. Temple v. 
First Nat'l Bank, 202 Miss. 92, 30 So. 2d 
605 (1947). 

The property specifically set aside by 
testator to take care of debts, costs, and 
expenses of the estate proving insuffi- 
cient, descendible personalty and realty 
were required to be first exhausted in the 
payment of such debts, etc., before en- 
croaching upon the legacies provided for 
in the will, in view of testator's directions 
that such legacies should be invaded and 
abated for such purpose only as a last 
resort. Temple v. First Nat'l Bank, 202 
Miss. 92, 30 So. 2d 605 (1947). 



RESEARCH REFERENCES 



ALR. Amount of funeral expenses al- 
lowable against decedent's estate. 4 
A.L.R.2d 995. 

Claims for expenses of last sickness or 
for funeral expenses as within contempla- 
tion of statute requiring presentation of 
claims against decedent's estate, or limit- 
ing time for bringing action thereon. 17 
A.L.R.4th 530. 



Lis pendens: grounds for cancellation 
prior to termination of underlying action, 
absent claim of delay. 49 A.L.R.4th 242. 

Law Reviews. 1978 Mississippi Su- 
preme Court Review: Miscellaneous. 50 
Miss. L. J. 165, March, 1979. 



§ 91-7-93. Inventory of money, debts due decedent, and prop- 
erty not appraised. 

The executor or administrator shall, within ninety days of the grant of his 
letters unless further time be allowed by the court or clerk, return an 
inventory, verified by oath, of the money belonging to the deceased which has 
come to his hands and of the debts due the deceased which have come to his 



139 



§ 91-7-93 



Trusts and Estates 



knowledge, specifying the nature of each debt, setting down such as may be 
deemed hopeful distinct and separate from those which may be deemed 
doubtful and desperate. He shall, where appraisement is dispensed with or be 
not made, embrace in said inventory and give its value all property which has 
come to his hands; and where an appraisement has been made, he shall be 
charged therewith unless he show cause to the contrary. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (78); 1857, ch. 60, art. 73; 
1871, § 1127; 1880, § 2018; 1892, § 1864; Laws, 1906, § 2039; Hemingway's 
1917, § 1704; Laws, 1930, § 1644; Laws, 1942, § 540. 

JUDICIAL DECISIONS 



1. In general. 

Intervention in estate proceedings is a 
proper mode of seeking correction of the 
inventory. Rayborn v. McGill, 243 Miss. 
585, 139 So. 2d 356 (1962). 

One listed in the inventory as owing 
decedent's estate may intervene for the 
purpose of contesting the item. Rayborn v. 
McGill, 243 Miss. 585, 139 So. 2d 356 
(1962). 

In determining what is received by ad- 
ministrator, court may look to appraise- 
ment. Hayes v. National Sur. Co., 169 
Miss. 676, 153 So. 515 (1934). 

Statutory provision that administrator 
shall be charged with what is shown by 
appraisement does not preclude proper 
parties from proving that articles ap- 
praised were actually worth more than 
respective appraised amounts. Hayes v. 
National Sur. Co., 169 Miss. 676, 153 So. 
515 (1934). 

Appraisement, as regards items with 
which it is authorized by law to deal, 
stands as correct charge prima facie 
against administrator. Hayes v. National 
Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

Statutory provision, that administrator 
shall stand charged with appraisement 
unless he show cause to contrary, does not 
limit showing to one by administrator 
himself, but showing may be made by any 
proper person sought to be charged with 
administrator's liability. Hayes v. Na- 
tional Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

In action against administrator of ad- 
ministrator, apparent defects in appraise- 
ment, introduced to show what adminis- 



trator received, were supplied by 
operation of presumption that incidental 
procedural steps which should have been 
taken were taken. Hayes v. National Sur. 
Co., 169 Miss. 676, 153 So. 515 (1934). 

Appraisement was no evidence against 
administrator in regard to accounts due 
estate, life insurance, and money on hand, 
because appraisement does not legally 
deal with money and choses in action, 
since such items are to be returned by 
inventory. Hayes v. National Sur. Co., 169 
Miss. 676, 153 So. 515 (1934). 

That administrator actually received 
more or less than was charged to him by 
appraisement may be shown by compe- 
tent evidence adduced by any proper 
party in interest. Hayes v. National Sur. 
Co., 169 Miss. 676, 153 So. 515 (1934). 

Although appraisement was no evi- 
dence against administrator regarding in- 
surance and cash, he was chargeable with 
insurance collected and cash received 
where evidence outside appraisement 
showed he received them. Hayes v. Na- 
tional Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

Where cotton crop was produced by ten- 
ants working on shares and landlord's 
estate was entitled to only one-third of 
crop, administrator was chargeable only 
with such one-third of crop. Hayes v. Na- 
tional Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

On accounting administrator is charge- 
able with actual value of property coming 
into his hands rather than value fixed by 
appraiser. Davis v. Blumenberg, 107 Miss. 
432, 65 So. 503 (1914). 



140 



Executors and Administrators § 91-7-99 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and Law Reviews. Symposium on Missis- 
Administrators §§ 161 et seq. sippi Rules of Civil Procedure: Pretrial 

9A Am. Jur. PI & Pr Forms (Rev), Ex- Procedure, Applicability of Rules, and Ju- 

ecutors and Administrators, Forms 371 et risdiction and Venue — Rules 16, 81 and 

seq. (inventory and appraisal). 82. 52 Miss. L. J. 105, March, 1982. 

CJS. 33 C.J.S., Executors and Adminis- 
trators §§ 152 et seq. 

§ 91-7-95. Additional inventory. 

Whenever personal property of any kind, or assets not contained in the 
previous inventory, shall come to the possession or knowledge of the executor, 
administrator, or collector, an account or inventory of the same shall be 
returned within thirty days from the time of discovery, and the same shall be 
appraised by sworn appraisers unless the court or clerk shall deem it 
unnecessary. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (79); 1857, ch. 60, art. 75; 
1871, § 1129; 1880, § 2020; 1892, § 1866; Laws, 1906, § 2041; Hemingway's 
1917, § 1706; Laws, 1930, § 1645; Laws, 1942, § 541. 

§ 91-7-97. Adoption of collector's inventory or new inventory. 

In case an inventory be returned by a temporary administrator, the 
executor or administrator who may succeed to the administration shall, within 
ninety days after the grant of his letters, either return a new inventory in place 
of the collector's inventory or file a written acknowledgment of the receipt of 
the articles contained in the first inventory and consent to be answerable for 
the same. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (80); 1857, ch. 60, art. 76; 
1871, § 1130; 1880, § 2021; 1892, § 1867; Laws, 1906, § 2042; Hemingway's 
1917, § 1707; Laws, 1930, § 1646; Laws, 1942, § 542. 

RESEARCH REFERENCES 

Am Jur. 9A Am. Jur. PI & Pr Forms extension of time to file inventory and 
(Rev), Executors and Administrators, appraisement). 
Form 431.1 (Petition or application — For 

§ 91-7-99. All to join in returning inventory. 

If there be more than one executor, administrator, or temporary adminis- 
trator, they shall all join in returning the inventories. If one or more refuse to 
do so, the others may return them, and the power and authority of the person 
so refusing shall thereafter cease. Those who return the inventory shall 
proceed in the administration, unless the delinquent, within sixty days, assign 
a reasonable excuse which the court may deem satisfactory. 

141 



§ 91-7-101 Trusts and Estates 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (86); 1857, ch. 60, art. 78; 
1871, § 1132; 1880, § 2022; 1892, § 1869; Laws, 1906, § 2044; Hemingway's 
1917, § 1709; Laws, 1930, § 1647; Laws, 1942, § 543. 

§ 91-7-101. Debt from executor or administrator inventoried. 

The naming of an executor in a will shall not operate to extinguish any 
claim which the deceased had against him, but it shall be the duty of every 
such executor accepting the trust to give in such claim in the list of debts. On 
his failure to give in such claim or any part thereof, any person interested in 
the estate may allege the facts by petition to the court, and the court shall 
decide on the validity of the claim, if it be denied. When the claim is 
established, the executor shall account for it as a debtor to the estate, and not 
otherwise; and in the same way and subject to all the foregoing provisions, an 
administrator shall give in a claim against himself. 

SOURCES: Codes, Hutchinson's 1848, ch. 49; art. 1 (88); 1857, ch. 60, art. 74; 
1871, § 1128; 1880, § 2019; 1892, § 1865; Laws, 1906, § 2040; Hemingway's 
1917, § 1705; Laws, 1930, § 1648; Laws, 1942, § 544. 

Cross References — Claim of executor or administrator against estate, see 
§ 91-7-163. 

JUDICIAL DECISIONS 

1. In general. intestate may be a breach of duty for 

"To give in" the claim does not operate which he is liable on his bond; yet it does 

as an estoppel on the executor or admin- not follow that the amount of the debt is to 

istrator to show that the same was in- be treated as so much money in his hands. 

valid. Franks v. Wanzer, 25 Miss. 121 Kelsey v. Smith, 2 Miss. (1 Howard) 68 

(1852). (1834). 
A failure by an administrator to make 

an inventory of the debt due by him to his 

§ 91-7-103. Summary proceeding for discovery of assets. 

If the goods, chattels, and effects are improperly withheld from the 
executor or administrator, then he shall not be answerable for a failure to 
return the inventories herein required until the goods, chattels, and effects, or 
some part thereof, have been received. If the executor or administrator shall 
have cause to believe that any of the assets of the estate are concealed or have 
been or are wrongfully withheld from him, or that any person has in his 
possession or under his control any records, books, or documents containing 
evidence concerning such assets and the ownership thereof, or has knowledge 
or information thereof otherwise, then it shall be the duty of such executor or 
administrator to forthwith proceed by a summary petition before the court or 
chancellor against all persons suspected of having concealed or wrongfully 
withheld such assets, as well as all persons having books, records, documents, 
or information relating thereto, for a discovery of the assets of the estate and 
all adverse claim thereto, if any. All persons made parties to such petition may 

142 



Executors and Administrators § 91-7-107 

be compelled by attachment for contempt to discover under oath by answer 
filed or testimony given, either or both at such time and place as the court or 
chancellor may direct, all the facts known to them concerning the assets of the 
estate and of all adverse claims thereto, if any If on the hearing it shall appear 
that any person has property or assets of the estate to which there is no 
adverse claim, the court or chancellor may direct it to be delivered to the 
executor or administrator, who shall forthwith account therefor in his inven- 
tory. No decree shall be rendered in such proceeding concerning any adverse 
claim set up by any person to any of the assets. The costs of such proceeding 
shall be borne by the estate. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (80); 1857, ch. 60, art. 76; 
1871, § 1130; 1880, § 2021; 1892, § 1868; Laws, 1906, § 2043; Hemingway's 
1917, § 1708; Laws, 1930, § 1649; Laws, 1942, § 545; Laws, 1936, ch. 241. 

§ 91-7-105. Failure to return inventory. 

If any executor, administrator, or temporary administrator fail to return 
proper inventories within the time prescribed by law or by order of the court, 
a summons returnable in not less than five days may, on application of any 
person interested, be issued for such executor, administrator, or collector to 
show cause why such inventory hath not been returned. If the summons be 
returned executed and such party do not appear or, appearing, fail to show 
good cause, the court, or clerk in vacation, shall revoke the letters and grant 
administration anew. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (85); 1857, ch. 60, art. 77; 
1871, § 1131; 1880, § 2023; 1892, § 1870; Laws, 1906, § 2045; Hemingway's 
1917, § 1710; Laws, 1930, § 1650; Laws, 1942, § 546. 

RESEARCH REFERENCES 

ALR. Delay of executor or administra- Am Jur. 31 Am. Jur. 2d, Executors and 
tor in filing inventory, account, or other Administrators § 490. 
report, or in completing administration 
and distribution of estate, as ground for 
removal. 33 A.L.R.4th 708. 

§ 91-7-107. Perfect inventory may be compelled. 

If any person interested discover that the inventory returned does not 
contain a full account of all the property, goods, chattels, and effects of the 
deceased, such person may, on petition to the court, have the executor, 
administrator, or temporary administrator cited to appear and show cause why 
an additional inventory should not be returned. If, on hearing, the court be 
satisfied that a true inventory was not originally returned, it may order the 
executor or administrator to return a new one; and on his failure to do so, his 
letters may be revoked. If the title to any property not inventoried be in 
dispute, it shall be sufficient for the executor, administrator, or collector so to 
report; and he shall not be required to return an additional inventory until the 

143 



§ 91-7-109 Trusts and Estates 

title be settled in his favor. It shall also be the duty of every executor and 
administrator to return additional inventories at least once in each year of the 
increase of the property of the estate, if there be any such increase. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (87); 1857, ch. 60, art. 79; 
1871, § 1133; 1880, § 2024; 1892, § 1871; Laws, 1906, § 2046; Hemingway's 
1917, § 1711; Laws, 1930, § 1651; Laws, 1942, § 547. 

JUDICIAL DECISIONS 

1. In general. including such corporate stock, the bur- 
in a contest between residuary legatees den of proof was upon the surviving exec- 
of a will and beneficiaries of an alleged gift utor and those claiming the stock, not as 
inter vivos of certain separate stock which purchasers for value, to prove that such 
was by the will directed to be sold by the stock was not a part of the assets of the 
executors along with other assets of the estate being administered. Lindeman's 
estate for the payment of numerous lega- Estate v. Herbert, 188 Miss. 842, 193 So. 
cies, wherein the residuary legatee sought 790 (1940). 
to compel a more complete inventory by 

RESEARCH REFERENCES 

ALR. Delay of executor or administra- Am Jur. 31 Am. Jur. 2d, Executors and 

tor in filing inventory, account, or other Administrators §§ 490, 491. 

report, or in completing administration CJS. 33 C.J.S., Executors and Adminis- 

and distribution of estate, as ground for trators § 127. 
removal. 33 A.L.R.4th 708. 

§ 91-7-109. Inventory and appraisement by disinterested per- 
sons. 

The goods, chattels, and personal estate of the decedent, other than money 
and choses in action, shall be inventoried and appraised unless the court or 
clerk, for good cause, order it dispensed with. On granting letters testamen- 
tary, or of administration, or of temporary administration, unless otherwise 
ordered, a warrant or warrants shall issue under the seal of the court, 
commanding three or more discreet persons not related to the deceased or 
interested in the estate to make the inventory and appraisement, any three or 
more of whom may act. The warrant shall command the appraisers to set apart 
to those entitled thereto the property exempt by law from execution, and to 
make the allowance for one year's support and tuition of those entitled to 
receive it. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (72); 1857, ch. 60, art. 70; 
1871, § 1124; 1880, § 2014; 1892, § 1872; Laws, 1906, § 2047; Hemingway's 
1917, § 1712; Laws, 1930, § 1652; Laws, 1942, § 548. 

Cross References — Compensation of appraisers, see § 25-7-67. 
Inventory by temporary administrator, see § 91-7-55. 
Report of appraisers, see § 91-7-137. 



144 



Executors and Administrators § 91-7-113 

JUDICIAL DECISIONS 

1. In general. O'Brian Bros. v. Wilson, 82 Miss. 93, 33 

An administrator has nothing to do So. 946 (1903). 
with the appointment of appraisers. 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and seq. (appointment and qualification of ap- 
Administrators § 493. praisers). 

9A Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 421 et 

§ 91-7-111. Warrants of appraisement to different counties. 

If the personal estate be in different counties and cannot be conveniently 
collected together, a warrant of appraisement may be issued to three or more 
appraisers in each county in which such property may be, or the appraisers 
designated for the county in which administration was granted may make the 
appraisement in each county The warrant to appraisers in any county other 
than that in which administration was granted need not command them to 
allot the exempt property or make the allowance for the year's support or 
tuition to those entitled thereto. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (71); 1857, ch. 60, art. 69; 
1871, § 1123; 1880, § 2015; 1892, § 1873; Laws, 1906, § 2048; Hemingway's 
1917, § 1713; Laws, 1930, § 1653; Laws, 1942, § 549. 

§ 91-7-113. Form of warrant. 

The warrant to the appraisers, except as otherwise provided, shall be to 
the following effect, viz.: 

"The State of Mississippi. 

"To , , and : 

"This is to command you- 

"First. — Before proceeding to act regarding the matters herein, to take the 
following oath, viz.: T do swear [or affirm] that I will well and truly, without 
partiality or prejudice, perform the duties of appraiser of the estate of 

, deceased, as commanded in the warrant of appraisement and 

according to law, to the best of my skill and judgment. So help me God.' 

"Second. — To jointly inventory and appraise the goods, chattels, and 

personal estate, other than money and choses in action, of , deceased, 

late of the county of , so far as the same may be shown to you or may 

come to your knowledge, setting down in a column or columns opposite to each 
article the value thereof in figures, and at the bottom of each column the 
contents thereof. 

"Third. — To jointly set apart to the widow and children, or to the widow if 
there be no children, or to the children if there be no widow, such of the estate 
as is exempt by law from execution. 

145 



§ 91-7-115 Trusts and Estates 

"Fourth. — To jointly set apart for the widow and children who were being 
supported by the deceased, or for the widow if there be no such children, or for 
the children if there be no widow, or to the infant children if the deceased were 
their mother and they were being maintained by her, one year's provisions and 
necessary wearing apparel, including in such provisions so much thereof as is 
embraced in the exempt property set apart to them; or, if there be no provisions 
or wearing apparel or an insufficient amount thereof, to allow a sum of money 
necessary to supply the same for one year. 

"Fifth. — To jointly ascertain and allow what sum of money will be 
necessary to pay tuition for the children for one year, in case there be any. 

"Sixth. — To jointly report in writing to the chancery court of 

county, within thirty days from the date hereof, your inventory and appraise- 
ment of said estate, and your allotment of the exempt property and the 
allowances made to the widow and children, if any, with your certificate 
attached that you took the oath herein as required. 

"Witness my hand and official seal, this day of , 

Clerk." 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (72); 1857, ch. 60, art. 70; 
1871, § 1124; 1880, § 2014; 1892, § 1874; Laws, 1906, § 2049; Hemingway's 
1917, § 1714; Laws, 1930, § 1654; Laws, 1942, § 550. 

JUDICIAL DECISIONS 

1. In general. since such items are to be returned by 

Appraisement was no evidence against inventory. Hayes v. National Sur. Co., 169 

administrator in regard to accounts due Miss. 676, 153 So. 515 (1934). 

estate, life insurance, and money on hand, Homestead is not subject to sale to pay 

because appraisement does not legally year's allowance to widow. Miers v. Miers, 

deal with money and choses in action, 160 Miss. 746, 133 So. 133 (1931). 

§ 91-7-115. Administration of oath and how vacancies filled. 

The oath required to be taken by the appraisers may be administered by 
any officer authorized to administer oaths, or by the executor or administrator, 
or by either appraiser to the others. In case any appraiser die, or for any cause 
do not act, another warrant may forthwith be issued to some other person to 
act. 

SOURCES: Codes, 1892, § 1875; Laws, 1906, § 2050; Hemingway's 1917, § 1715; 
Laws, 1930, § 1655; Laws, 1942, § 551. 

§ 91-7-117. Appraisers to set apart exempt property. 

It shall be the duty of the appraisers to set apart to the widow and 
children, or to the widow if there be no children, or to the children if there be 
no widow, such personal property as is exempt by law from execution, and 
make report thereof and attach it to the appraisement, which shall be 
approved by the court if found correct, or may be referred back to them by the 
court with instructions as to what to allow. The action of the appraisers or the 

146 



Executors and Administrators 



§ 91-7-33 



court shall not be necessary to the title of the widow and children to the exempt 
property, which shall vest in them by operation of law on the death of the 
husband and father. 

SOURCES: Codes, 1871, § 1290; 1880, § 1278; 1892, § 1876; Laws, 1906, § 2051; 
Hemingway's 1917, § 1716; Laws, 1930, § 1656; Laws, 1942, § 552. 

Cross References — Homestead exemption generally, see §§ 85-3-31 et seq. 

Descent of exempt property, see § 91-1-19. 

Designation of exempt property in appraisers' report, see § 91-7-137. 

JUDICIAL DECISIONS 



1. In general. 

Title to household furniture vested in 
testator's children, and was not charge- 
able to administrator. Fidelity & Deposit 
Co. v. Doughtry, 181 Miss. 586, 179 So. 
846 (1938). 

Where deceased share tenant left noth- 
ing except exempt property, administra- 
tion was unnecessary; hence widow and 
children having unsuccessfully demanded 
tenant's share from landlord could recover 
in replevin. Williams v. Sykes, 170 Miss. 
88, 154 So. 267 (1934), error overruled, 
170 Miss. 93, 154 So. 727 (1934). 

Widow, as administratrix de bonis non, 
could not be charged with entire personal 



property received, but only as to part not 
exempt, though appraisers did not set 
exempt property apart. Hayes v. National 
Sur. Co., 169 Miss. 676, 153 So. 515 
(1934). 

Exempt property descends freed not 
only from debts incurred by owner in 
lifetime, but also expenses of last illness 
and funeral, regardless of whether estate 
is solvent. De Baum v. Hulett Undertak- 
ing Co., 169 Miss. 488, 153 So. 513 (1934). 

Homestead is not subject to sale to pay 
year's allowance to widow. Miers v. Miers, 
160 Miss. 746, 133 So. 133 (1931). 



RESEARCH REFERENCES 



ALR. Right of nonresident surviving 
spouse or minor children to allowance of 
property exempt from administration or 
to family allowance from local estate of 
nonresident decedent. 51 A.L.R.2d 1026. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 677-681. 



9A Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 491 et 
seq. (exempt property). 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 344 et seq. 



§§ 91-7-119 through 91-7-33. Repealed. 

Repealed by Laws, 1976, ch. 407, § 44, eff from and after April 1, 1977. 

§ 91-7-119. [Codes, 1942, § 553; Laws, 1936, ch. 237] 

§ 91-7-121. [Codes, 1892, § 1909; 1906, § 2084; Hemingway's 1917, 

§ 1751; 1930, § 1657; 1942, § 554] 

§ 91-7-123. [Codes, 1892, § 1910; 1906, § 2085; Hemingway's 1917, 

§ 1752; 1930, § 1658; 1942, § 555] 

§ 91-7-125. [Codes, 1892, § 1911; 1906, § 2086; Hemingway's 1917, 

§ 1753; 1930, § 1659; 1942, § 556] 

§ 91-7-127. [Codes, 1892, § 1912; 1906, § 2087; Hemingway's 1917, 

§ 1754; 1930, § 1660; 1942, § 557] 



147 



§ 91-7-135 



Trusts and Estates 



§ 91-7-129. [Codes, 1892, § 1913 
§ 1755; 1930, § 1661; 1942, § 558] 

§ 91-7-131. [Codes, 1892, § 1914 
§ 1756; 1930, § 1662; 1942, § 559] 

§ 91-7-133. [Codes, 1892, § 1915 
§ 1757; 1930, § 1663; 1942, § 560] 



1906, § 2088 
1906, § 2089 
1906, § 2090 



Hemingway's 1917, 
Hemingway's 1917, 
Hemingway's 1917, 



Editor's Note 


Former § 91-7- 


Former § 91-7- 


Former § 91-7- 


Former § 91-7- 


Former § 91-7- 


Former§ 91-7- 


Former § 91-7- 


§ 91-7-135. 


family. 



— Former § 91-7-119 was entitled: Sale of partnership interest. 

121 was entitled: Inventory of partnership estates. 

123 was entitled: Property delivered tosurviving partner. 

125 was entitled: Condition of partner's bond. 

127 was entitled: Status of surviving partner. 

129 was entitled: Survivor refusing to act. 

131 was entitled: Executor's further bond in such case. 

133 was entitled: Duties of surviving partners. 

Appraisers to set apart one year's support for 



It shall be the duty of the appraisers to set apart out of the effects of the 
decedent, for the spouse and children who were being supported by the 
decedent, or for the spouse if there be no such children, or for such children if 
there be no spouse, one (1) year's provision, including such provision as may be 
embraced in the exempt property set apart. If there be no provisions, or an 
insufficient amount, the appraiser shall allow money in lieu thereof or in 
addition thereto necessary for the comfortable support of the spouse and 
children, or spouse or children, as the case may be, for one (1) year. In addition 
to the provisions or money in lieu thereof, the appraisers shall ascertain and 
allow what sum of money will be needed to purchase necessary wearing 
apparel for the spouse and such children, or the spouse or children, as the case 
may be, and to pay tuition for the children for one (1) year. If a parent dies 
leaving children who are infants and were being maintained by the parent, the 
same provisions and allowance shall be set apart and made for them as above 
provided. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 17 (1); 1857, ch. 60, art. 172; 
1871, §§ 1290, 1957; 1880, § 1279; 1892, § 1877; Laws, 1906, § 2052; Heming- 
way's 1917, § 1717; Laws, 1930, § 1664; Laws, 1942, § 561; Laws, 1992, ch. 
321 § 1, eff from and after passage (approved April 20, 1992). 

Cross References — Exempt property generally, see §§ 85-3-1 et seq. 

Descent of exempt property, see § 91-7-167. 

Allowance for maintenance and education of ward, see § 93-13-35. 

JUDICIAL DECISIONS 



1. In general; nature of entitlement. 4. 

2. Who is entitled. 5. 

3. Effect of terms of, lack of, or renunci- 6. 

ation of, will. 



Authority, role of court. 
Non-residents. 

Spouse living apart from spouse; chil- 
dren living apart from parent. 



148 



Executors and Administrators 



§ 91-7-135 



7. Amount; payment. 

8. Miscellaneous. 

1. In general; nature of entitlement. 

Real estate owned as tenants by the 
entirety vested exclusively in surviving 
wife upon husband's death, and thus did 
not become asset of husband's probate 
estate and was not available to be distrib- 
uted in kind as widow's allowance. In re 
Osborne, 120 B.R. 64 (Bankr. N.D. Miss. 
1990). 

Right of widow to year's allowance is 
absolute, whatever may be condition of 
estate, and application therefor is matter 
with which administrator has no concern. 
Harwell v. Woody, 206 Miss. 863, 41 So. 2d 
35 (1949). 

Administrator, as such, is without right 
to prosecute appeal from order of court 
decreeing year's allowance to widow of 
decedent, in absence of issue involving her 
status as widow entitled to allowance. 
Harwell v. Woody, 206 Miss. 863, 41 So. 2d 
35 (1949). 

The right of a widow to an allowance for 
a year's support is absolute and cannot be 
conditioned on the payment by her to the 
administrator of her deceased husband's 
wages which she has collected. Westbrook 
v. Shotts, 200 Miss. 456, 27 So. 2d 683 
(1946). 

Making a year's allowance for support 
of deceased's widow is part of jurisdiction 
of chancery court, which cannot be taken 
away nor impaired by legislature, so that 
authority in appraisers to set aside year's 
support does not deprive chancellor of 
authority. Prentiss v. Turner, 170 Miss. 
496, 155 So. 214 (1934). 

Right of widow to year's support supe- 
rior to lien of enrolled judgment. First 
Nat'l Bank v. Donald, 112 Miss. 681, 73 
So. 723 (1917). 

Wife entitled to year's support under 
will of husband devising all his property 
to sisters to exclusion of wife. Whitehead 
v. Kirk, 106 Miss. 706, 64 So. 658 (1914). 

2. Who is entitled. 

In order to be entitled to the widow's 
allowance, a widow need only show that 
she and decedent were living together as 
husband and wife at the time of his death. 
Waldrup v. United States, 499 F. Supp. 
820 (N.D. Miss. 1980). 



A widow's allowance was properly de- 
nied where the widow did not make a 
motion for or in any other manner indi- 
cate that she wanted a widow's allowance 
set aside to her before the estate was 
finally closed, and where there was no 
suggestion of fraud. Thomas v. Bailey, 375 
So. 2d 1049 (Miss. 1979). 

Where widow and decedent were living 
together as husband and wife at time of 
decedent's death and he was under a duty 
to support her, widow's allowance was 
proper under Code 1942 § 561. Mills v. 
Mills, 279 So. 2d 917 (Miss. 1973). 

One claiming this allowance has the 
burden of showing that she was being 
supported by decedent. In re Marshall's 
Will, 243 Miss. 472, 138 So. 2d 482 (1962). 

A posthumous child has rights in the 
year's support. Womack v. Boyd, 31 Miss. 
443 (1856). 

3. Effect of terms of, lack of, or renun- 
ciation of, will. 

A widow is entitled to the statutory 
widow's allowance, regardless of a will, 
unless it clearly appears that the provi- 
sions of the will for the widow are in lieu of 
the year's support provided by statute. 
Rush v. Rush, 360 So. 2d 1240 (Miss. 
1978). 

This section [Code 1942 § 561] applies 
to cases of testacy and intestacy alike 
except in the case of wills where it clearly 
appears that the provisions in the will for 
the widow and minor children of the dece- 
dent are in lieu of the 1 year's support 
provided for by the statute. Mills v. Mills, 
279 So. 2d 917 (Miss. 1973). 

Allowance of a year's support to a widow 
renouncing her husband's will is within 
the chancellor's discretion. Sandifer v. 
Sandifer, 237 Miss. 464, 115 So. 2d 46 
(1959). 

Widow's contract reciting that she 
waived right to renounce will of husband 
and take by inheritance held too indefinite 
to preclude widow from $3,000 as year's 
allowance provided by statute. Gidden v. 
Gidden, 176 Miss. 98, 167 So. 785 (1936). 

Will held not to show intention on part 
of testator that provisions therein for 
widow were to be in lieu of statutory 
allowance for support for year. Gilmer v. 
Gilmer, 151 Miss. 23, 117 So. 371 (1928). 



149 



§ 91-7-135 



Trusts and Estates 



Widow and minor children entitled to 
year's support in case of will where provi- 
sion of will not made in lieu of all other 
claim, or there is no inconsistency be- 
tween will and provision for allowance. 
Stewart v. Stewart, 132 Miss. 515, 96 So. 
694 (1923). 

4. Authority, role of court. 

The fixing of the amount of the widow's 
allowance by the appraisers is not final, 
but is subject to approval or disapproval of 
the chancery court. Beckett v. Howorth, 
237 Miss. 394, 115 So. 2d 48 (1959). 

Making a year's allowance for support 
of deceased's widow is part of jurisdiction 
of chancery court, which cannot be taken 
away nor impaired by legislature, so that 
authority in appraisers to set aside year's 
support does not deprive chancellor of 
authority. Prentiss v. Turner, 170 Miss. 
496, 155 So. 214 (1934). 

Action of appraisers in making allow- 
ance for year's support to widow of dece- 
dent is not final, but only advisory to 
chancellor, and subject to his approval or 
disapproval. Prentiss v. Turner, 170 Miss. 
496, 155 So. 214 (1934). 

If appraisers make no allowance for 
widow's support for a year, court or chan- 
cellor in vacation may, on proper petition 
therefor, make allowance. Gilmer v. Gil- 
mer, 151 Miss. 23, 117 So. 371 (1928). 

5. Non-residents. 

The statute has no application in favor 
of nonresidents. Barber v. Ellis, 68 Miss. 
172, 8 So. 390 (1890). 

6. Spouse living apart from spouse; 

children living apart from par- 
ent. 

Where husband's obligation to support 
wife was terminated by a property settle- 
ment, the wife is not entitled to the stat- 
utory support allowance out of his estate. 
Best's Will v. Brewer, 236 Miss. 359, 111 
So. 2d 262 (1959). 

A wife being supported by her husband 
at the time of his death in compliance with 
a decree for temporary alimony was enti- 
tled to an allowance for a year's support. 
Stringer v. Arrington, 202 Miss. 798, 32 
So. 2d 879 (1947). 

Allowance to widow of support for one 
year was authorized where evidence war- 



ranted court in believing that separation 
of deceased and wife resulted from no 
fault of wife but was the fault of deceased 
and that his duty to support her contin- 
ued. Vaughan v. Vaughan, 195 Miss. 463, 
16 So. 2d 23 (1943). 

Wife living apart from husband without 
his fault, and not supported by him, is not 
entitled to a year's support from his es- 
tate. Byars v. Gholson, 147 Miss. 460, 112 
So. 578 (1927). 

7. Amount; payment. 

Where a decedent left an estate of an 
approximate value of $139,000, an allow- 
ance to the widow of $6,000 for one year's 
support was not excessive. Bryan v. 
Quinn, 233 Miss. 366, 102 So. 2d 124 
(1958). 

Amount of widow's allowance is discre- 
tionary with chancellor where fees of ad- 
ministrator and counsel have been paid 
and award is $800 less than that recom- 
mended by appraisers. Harwell v. Woody, 
206 Miss. 863, 41 So. 2d 35 (1949). 

The amount allowed by the appraisers 
to the widow for year's support is advisory 
to, but not binding upon, the chancellor. 
Moseley v. Harper, 202 Miss. 442, 32 So. 
2d 192 (1947). 

In determining the amount of the wid- 
ow's allowance, the chancellor should con- 
sider the value of the estate, the rights of 
others having an interest therein, the 
manner of living to which the widow was 
accustomed during her husband's life, her 
station in life and the demands of that 
station. Moseley v. Harper, 202 Miss. 442, 
32 So. 2d 192 (1947). 

Refusal of chancellor to increase ap- 
praiser's allowance for widow's support 
from $5,000 to $8,500 was not an abuse of 
discretion, where items presented by 
widow to substantiate her petition for 
increase included improper items such as 
expenses for repairs, taxes and insurance 
upon her separate property, lot and cloth- 
ing for burial of decedent, and other ex- 
cessive costs. Moseley v. Harper, 202 Miss. 
442, 32 So. 2d 192 (1947). 

Executor must turn over money 
awarded widow for year's support to her 
in cash; he cannot withhold it on ground 
she has property which belongs to estate. 
Pratt v. Pratt, 155 Miss. 237, 124 So. 323 
(1929). 



150 



Executors and Administrators § 91-7-139 

Amount of allowance for support of and income from property bequeathed 

widow is within discretion of chancellor, held properly excluded. Gilmer v. Gilmer, 

Gilmer v. Gilmer, 151 Miss. 23, 117 So. 151 Miss. 23, 117 So. 371 (1928). 
371 (1928); Whitehead v. Kirk, 106 Miss. 

706, 64 So. 658 (1914); Bryan v. Quinn, 8. Miscellaneous. 

233 Miss. 366, 102 So. 2d 124 (1958). Homestead is not subject to sale to pay 

Allowance of $2,400 for support of year's allowance to widow. Miers v. Miers, 

widow during year following decedent's 160 Miss. 746, 133 So. 133 (1931). 

death held not excessive. Gilmer v. Gil- Notice to executor or legatees of pro- 

mer, 151 Miss. 23, 117 So. 371 (1928). ceedings by widow for year's allowance for 

In proceeding to set aside decree grant- SU p por t is not required. Gilmer v. Gilmer, 

ing widow allowance for year's support, 151 Miss 2 3, 117 So. 371 (1928). 
evidence regarding her separate income 

RESEARCH REFERENCES 

ALR. Right of nonresident surviving 9A Am. Jur. PI & Pr Forms (Rev), Ex- 
spouse or minor children to allowance of ecutors and Administrators, Forms 451 et 
property exempt from administration or seq. (family allowance), 
to family allowance from local estate of CJS. 34 C.J. S., Executors and Adminis- 
nonresident decedent. 51 A.L.R.2d 1026. trators §§ 344 et seq. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 677-681. 

§ 91-7-137. Appraisers to report. 

When the inventory and appraisement shall be finished as required, the 
appraisers shall report the same in writing to the court from which the 
warrant of appraisement issued, with their certificate of having taken the 
proper oath thereto attached, within thirty days from the issuance of the 
warrant or within such additional time as may be granted. They shall annex 
thereto a statement showing such allowances as they may have made to the 
widow and children, or either of them, and designating the property which 
they may have set apart to them as exempt property. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (75); 1857, ch. 60, arts. 71, 72; 
1871, §§ 1125, 1126; 1880, §§ 2016, 2017; 1892, § 1878; Laws, 1906, § 2053; 
Hemingway's 1917, § 1718; Laws, 1930, § 1665; Laws, 1942, § 562. 

Cross References — Homestead allotment, see § 85-3-35. 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. Proof of Facts 2d 1, 
Appraiser's Third-Party Liability for Neg- 
ligent Appraisal of Real Property. 

§ 91-7-139. Extension of time; defaulting appraiser fined. 

The court or clerk may allow further time to the appraisers for the 
performance of their duties. For a failure to return the inventory and 
appraisement, an attachment may issue and, on the service of the same, the 

151 



§ 91-7-141 Trusts and Estates 

court may fine the parties in default, as for a contempt, not exceeding fifty 
dollars each. 

SOURCES: Codes, 1892, § 1879; Laws, 1906, § 2054; Hemingway's 1917, § 1719; 
Laws, 1930, § 1666; Laws, 1942, § 563. 

§ 91-7-141. Court may apportion year's allowance. 

The chancery court may apportion the one year's allowance, or any part of 
it, according to the situation, rights, and interests of any of the children or the 
widow, and may direct the payment of any portion of the allowance which may 
be found necessary or proper to any of them. 

SOURCES: Codes, 1871, § 1959; 1880, § 1281; 1892, § 1880; Laws, 1906, § 2055; 
Hemingway's 1917, § 1720; Laws, 1930, § 1667; Laws, 1942, § 564. 

JUDICIAL DECISIONS 

1. In general. the year's allowance, and the court will 

If the widow be not the mother of the apportion it. Womack v. Boyd, 31 Miss. 

children, and they live apart, the latter 443 (1856). 
will be entitled to have a fair proportion of 

RESEARCH REFERENCES 

ALR. Right of nonresident surviving to family allowance from local estate of 
spouse or minor children to allowance of nonresident decedent. 51 A.L.R.2d 1026. 
property exempt from administration or 

§ 91-7-143. Minor distributee or legatee maintained. 

An executor or administrator of a solvent estate may defray the necessary 
and reasonable expenses of the maintenance and education of legatees or 
distributees who are minors and have no guardian, and may be allowed a 
credit therefor against the shares of the estate to which such minors are 
entitled on distribution. Before making such expenditures, he shall obtain the 
order of the court, or of the chancellor in vacation, authorizing him to make 
them. 

SOURCES: Codes, 1880, § 2094; 1892, § 1954; Laws, 1906, § 2128; Hemingway's 
1917, § 1796; Laws, 1930, § 1668; Laws, 1942, § 565. 

Cross References — Maintenance of child under guardianship, see §§ 93-13-35 et 
seq. 

§ 91-7-145. Notice to creditors of estate. 

(1) The executor or administrator shall make reasonably diligent efforts 
to identify persons having claims against the estate. Such executor or admin- 
istrator shall mail a notice to persons so identified, at their last known address, 
informing them that a failure to have their claim probated and registered by 
the clerk of the court granting letters within ninety (90) days after the first 

152 



Executors and Administrators § 91-7-145 

publication of the notice to creditors will bar such claim as provided in Section 
91-7-151. 

(2) The executor or administrator shall file with the clerk of the court an 
affidavit stating that such executor or administrator has made reasonably 
diligent efforts to identify persons having claims against the estate and has 
given notice by mail as required in subsection (1) of this section to all persons 
so identified. Upon filing such affidavit, it shall be the duty of the executor or 
administrator to publish in some newspaper in the county a notice requiring 
all persons having claims against the estate to have the same probated and 
registered by the clerk of the court granting letters, which notice shall state the 
time when the letters were granted and that a failure to probate and register 
within ninety (90) days after the first publication of such notice will bar the 
claim. The notice shall be published for three (3) consecutive weeks, and proof 
of publication shall be filed with the clerk. If a paper be not published in the 
county, notice by posting at the courthouse door and three (3) other places of 
public resort in the county shall suffice, and the affidavit of such posting filed 
shall be evidence thereof in any controversy in which the fact of such posting 
shall be brought into question. 

(3) The filing of proof of publication as provided in this section shall not be 
necessary to set the statute of limitation to running, but proof of publication 
shall be filed with the clerk of the court in which the cause is pending at any 
time before a decree of final discharge shall be rendered; and the time for filing 
proof of publication shall not be limited to the ninety-day period in which 
creditors may probate claims. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (115); 1857, ch. 60, art. 81; 
1871, § 1135; 1880, § 2026; 1892, § 1929; Laws, 1906, § 2103; Hemingway's 
1917, § 1771; Laws, 1930, § 1669; Laws, 1942, § 566; Laws, 1920, ch. 302; 
Laws, 1928, ch. 69; Laws, 1975, ch. 373, § 4; Laws, 1989, ch. 582, § 2; Laws, 
1994, ch. 430 § 1, eff from and after passage (approved March 17, 1994). 

Cross References — Publication where estate is insolvent, see § 91-7-267. 

JUDICIAL DECISIONS 

1. In general. surgery, P.A., 635 So. 2d 1389 (Miss. 

2. Sufficiency of notice. 1994). 



1. In general. 



The time bar of § 91-7-145 did not ap- 



The role played by the chancery court in «* and therefore a creditor s untimely 
probate proceedings under § 91-7-143, <* aim a S ainst an esta * e was va ld ' where 
upon which the statute's time bar is de- the «**»■ ^ as J reasonably ascer- 
pendent in that notice may be published tamable ' and the administratrix merely 
only after an affidavit is filed with the Published notice rather than providing 
clerk of court, is sufficient state action to notlce W mai1 as mandated by the statute; 
implicate the due process clause of the furthermore, the insufficient notice vio- 
Fourteenth Amendment to the United lated the du e process clause of the Four- 
States Constitution; thus, a creditor's teenth Amendment to the United States 
claim against an estate was a property Constitution. Vann v. Mississippi Neuro- 
interest protected by the Fourteenth surgery, P.A., 635 So. 2d 1389 (Miss. 
Amendment. Vann v. Mississippi Neuro- 1994). 

153 



91-7-145 



Trusts and Estates 



Notice to creditors of decedent's estate 
signed by the then duly appointed and 
qualified administrator was valid, not- 
withstanding that he was removed, on 
motion of decedent's widow, on the same 
date that notice to the creditors was first 
published, and a creditor's claim filed 
some 2 months after expiration of the 90 
day period from first publication date was 
time barred. Myers v. Myers, 498 So. 2d 
376 (Miss. 1986). 

Whether the publication of notice to 
creditors required by § 91-7-145 is made 
in an appropriate newspaper brings into 
bearing § 13-3-31, which sets forth the 
requirements a newspaper must meet in 
order to qualify as a valid publisher of 
legal notices. Myers v. Myers, 498 So. 2d 
376 (Miss. 1986). 

Contention that notice to creditors was 
not published in a newspaper which qual- 
ified as a valid publisher of legal notices, 
which was not raised in the court below, 
would not be considered by the Supreme 
Court on appeal. Myers v. Myers, 498 So. 
2d 376 (Miss. 1986). 

Where decedent's first wife failed to file 
a claim for unpaid alimony against his 
estate within the statutory period of 90 
days, she was estopped under § 91-7-145 
from bringing her claim. Medders v. Ryle, 
458 So. 2d 685 (Miss. 1984). 

Administrator is required to speedily 
publish notice to creditors requiring pro- 
bate of claims within six months. 
McDowell v. Minor, 158 Miss. 360, 130 So. 
484 (1930). 

Administrator could not delay in his 
duty to make prompt publication of notice 
to creditors and thereafter take advantage 
of delay in his own behalf. McDowell v. 
Minor, 158 Miss. 360, 130 So. 484 (1930). 

A decedent's estate is not liable for an 
assessment against the decedent as stock- 
holder in a failed national bank, made in 
the decedent's lifetime, where a claim 
therefor was not presented within the 
time limited by the Mississippi statute. 
Mann v. Kleisdorff, 16 F.2d 997 (5th Cir. 
1927). 

Claim not presented within six months 
after publication is not barred where no- 



tice not published for three consecutive 
weeks and no proof of publication is made 
and filed with clerk. Boutwell v. Farmers' 
& Traders' Bank, 118 Miss. 50, 79 So. 1 
(1918). 

Court cannot after publication make a 
second publication shortening time al- 
lowed in first publication for probating 
and registering claims. Geisenberger v. 
Progress Knitting Mills, 113 Miss. 495, 74 
So. 331 (1917). 

2. Sufficiency of notice. 

Notice to creditors of estate to have 
claims probated and registered before 
chancery court clerk of certain county 
within specified six-month period held 
sufficient as against contention that no- 
tice was fatally defective because it did 
not indicate to creditors what court had 
granted letters of executorship. Floyd v. 
Chatham, 178 Miss. 137, 172 So. 504 
(1937). 

Executor's notice to creditors not void 
because date in notice not that on which 
letters granted. George T. Webb & Co. v. 
Fogg, 134 Miss. 605, 99 So. 504 (1924). 

"Notice is hereby given to all creditors 
having claims against said estate to 
present same to the clerk of said court for 
probate and registration according to law, 
within six months from this date, or they 
will be forever barred," dated and signed 
by administrator, is sufficient. Stevens v. 
D.R. Dunlap Mercantile Co., 108 Miss. 
690, 67 So. 160 (1915). 

Publication of notice dated May 26, 
1910, in newspaper on June 3, 10 and 17, 
sufficient. Stevens v. D.R. Dunlap Mercan- 
tile Co., 108 Miss. 690, 67 So. 160 (1915). 

Notice stating that person publishing it 
was appointed administrator and advis- 
ing all persons having claims to deal as 
law directs was not sufficient. Marshall v. 
John Deere Plow Co., 99 Miss. 284, 54 So. 
948 (1911). 

Administrator's notice not void for use 
of word "file" instead of "register." Stokes 
v. Lemon & Gale Co., 96 Miss. 868, 52 So. 
457 (1910). 



154 



Executors and Administrators § 91-7-149 

RESEARCH REFERENCES 

ALR. What constitutes rejection of 9A Am. Jur. PI & Pr Forms (Rev), Ex- 
claim against estate to commence running ecutors and Administrators, Forms 641 et 
of statute of limitations applicable to re- seq. (notice to creditors), 
jected claims. 36 AL.R.4th 684. 8 Am. Jur. Legal Forms 2d, Executors 

Validity of nonclaim statute or rule pro- and Administrators §§ 104:161 et seq. 

vision for notice by publication to claim- (creditors' claims). 

ants against estate — post-1950 cases. 56 c JS 34 c. J.S., Executors and Adminis- 

A.L.R.4th 458. trators § 440. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 620, 623. 

§ 91-7-147, Newspaper notices dispensed with in small es- 
tates. 

Where the value of an estate shall not be more than Five Hundred Dollars 
($500.00), the court shall dispense with newspaper notices; and notices in lieu 
thereof shall be posted for thirty (30) days at the courthouse door and two (2) 
other public places in the county. Failure of persons having claims against the 
estate to have their claims probated and registered by the clerk of the court 
granting letters within ninety (90) days after the date on which notice is posted 
will bar such claims as provided in Section 91-7-151. 

SOURCES: Codes, 1857, ch. 60, art. 97; 1871, § 1157; 1880, § 2066; 1892, § 1891; 
Laws, 1906, § 2066; Hemingway's 1917, § 1731; Laws, 1930, § 1670; Laws, 
1942, § 567; Laws, 1994, ch. 430, § 2, eff from and after passage (approved 
March 17, 1994). 

RESEARCH REFERENCES 

ALR. Validity of nonclaim statute or claimants against estate-post- 1950 cases, 
rule provision for notice by publication to 56 A.L.R.4th 458. 

§ 91-7-149. Probate of claims. 

Any person desiring to probate his claim shall present to the clerk the 
written evidence thereof, if any, or if the claim be a judgment or decree, a duly 
certified copy thereof, or if there be no written evidence thereof, an itemized 
account or a statement of the claim in writing, signed by the creditor, and make 
affidavit, to be attached thereto, to the following effect, viz.: That the claim is 
just, correct, and owing from the deceased; that it is not usurious; that neither 
the affiant nor any other person has received payment in whole or in part 
thereof, except such as is credited thereon, if any; and that security has not 
been received therefor except as stated, if any. Thereupon, if the clerk shall 
approve, he shall indorse upon the claim the words following: "Probated and 

allowed for $ and registered this day of , A.D., 

," and shall sign his name officially thereto. Probate registration and 

allowance shall be sufficient presentation of the claim to the executor or 
administrator; provided, that should the clerk probate and allow and register 
the claim, but fail or neglect to indorse thereon the words, "Probated and 

155 



§ 91-7-149 Trusts and Estates 

allowed for $ and registered the day of , A.D., 

," and officially sign his name thereto, the court may, upon proper 

showing, allow the clerk to indorse on the claim, nunc pro tunc, the words, 

"Probated and allowed for $ and registered, this the day of 

, A.D., ," and sign his name officially thereto. If the claim be 

based upon a demand of which there is no written evidence or upon an itemized 
account, the statement of said claim or the itemized account shall be retained 
and kept by the clerk among the official papers pertaining to the estate; and if 
the claim be based upon a promissory note or other instrument purporting to 
have been executed by the decedent, the creditor shall file with his claim either 
the original thereof or a duplicate of such original in the discretion of the 
creditor. If the original writing is presented to the clerk, it may be withdrawn 
by the creditor, and the clerk shall make a duplicate thereof. No specific 
writing or certificate shall be required to be made by the clerk on either the 
original writing or the duplicate retained by the clerk. In no instance shall an 
original writing be required to be presented to the clerk unless (a) a question 
is raised by the personal representative of the estate, or by any party in 
interest, as to the authenticity of the original or (b) in the circumstances it 
would be unfair to admit into evidence the duplicate in lieu of the original. In 
either of the above situations, the court or chancellor, upon good cause being 
shown, may require the creditor to produce the original before the court or 
clerk for the inspection of the personal representative or other party in 
interest, who may examine the original and who may make photographic 
copies thereof under the supervision of the clerk. 

Notwithstanding the foregoing, any record, voucher, claim, check, draft, 
receipt, writing, account, statement, note or other evidence which may be 
furnished, filed, probated, presented or produced, or required to be produced, 
by a federally regulated bank, thrift or trust company shall be deemed to be an 
original admitted, furnished, filed, probated, presented, or produced for all 
purposes and with the same effect as the original, if such financial institution 
produces a copy of such evidence from a format of storage commonly used by 
financial institutions, whether electronic, imaged, magnetic, microphoto- 
graphic or otherwise. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (90); 1857, ch. 60, art. 82; 
1871, § 1137; 1880, § 2027; 1892, § 1932; Laws, 1906, § 2106; Hemingway's 
1917, § 1774; Laws, 1930, § 1671; Laws, 1942, § 568; Laws, 1934, ch. 304; 
Laws, 1991, ch. 413, § 1; Laws, 1996, ch. 400, § 42, efffrom and after passage 
(approved March 19, 1996). 

Cross References — Power of chancery clerk to allow and register claims against 
estate, see § 9-5-141. 

Register of claims to be kept by chancery clerk, see § 9-5-173. 

Notice of contest of claim, see § 91-7-165. 

Proceedings in insolvent estates, see §§ 91-7-261 et seq. 



156 



Executors and Administrators 



§ 91-7-149 



JUDICIAL DECISIONS 



1. In general. 

2. Mandatory nature of statute. 

3. Claims subject to probate. 

4. — Claim of executor or trustee. 

5. Statement of claims. 

6. Clerk's certificate. 

7. Withdrawal of instruments. 

8. Defective probate. 

9. Affidavit. 

10. Payment of claims. 

11. Unprobated claims. 

12. Limitations. 

13. Written evidence. 

1. In general. 

The amendment to § 91-7-149 which 
deleted the requirement of filing the orig- 
inal promissory note when a creditor 
makes a claim against the estate, would 
be retroactively applied to a case which 
was before the court when the amend- 
ment was enacted. Bell v. Mitchell, 592 So. 
2d 528 (Miss. 1991). 

In order for a claimant to introduce 
evidence to support a claim against an 
estate for medical expenses upon contest, 
the claimant may proceed under § 41-9- 
119, but to do this, he or she must be 
allowed to go into court to present the bills 
incurred and to testify for what purpose 
they were incurred. Since a summary 
judgment, by its nature, disposes of a case 
before a trial is commenced, summary 
judgment practice under Rule 56, Miss. R. 
Civ. P. is inapplicable in contests of pro- 
bated claims because it is inconsistent 
with the statutory procedure which neces- 
sitates that a claimant enter court to 
introduce evidence in support of his or her 
claim and permits a personal representa- 
tive to rebut the claim. Thus, the proce- 
dure for summary judgment is not appli- 
cable to dispose of claims made under 
§ 91-7-149. Biloxi Regional Medical Ctr., 
Inc. v. Estate of Ross, 546 So. 2d 667 
(Miss. 1989). 

A substantial compliance with the stat- 
ute is sufficient. Central Optical Merchan- 
dising Co. v. Lowe's Estate, 249 Miss. 61, 
160 So. 2d 673 (1964). 

The purposes of nonclaim statutes are 
to furnish the legal representative with 
evidence of the validity of the claim, give 



him an opportunity to contest the same, 
and enable him to justify the payment and 
be allowed credit therefor in his account. 
Whitaker v. Davenport, 193 Miss. 523, 10 
So. 2d 202 (1942). 

Probating, allowing, and registering of 
claims against estate are not "judicial 
acts" on part of clerk. Poyner v. Gilmore, 
171 Miss. 859, 158 So. 922 (1935). 

Purpose of additional provisions, incor- 
porated into statute regulating manner of 
filing claims for probate was to require 
evidences of debt to remain on file in 
clerk's office, where heirs, or other credi- 
tors or parties in interest, could better 
examine into facts, so as to avoid collec- 
tion of false claims. Jordan v. Love, 171 
Miss. 523, 157 So. 877 (1934). 

Claim against estate of deceased stock- 
holder in insolvent bank, for personal lia- 
bility filed and marked "probated" by 
clerk, held not void because lost or mislaid 
by clerk. Carothers v. Love, 169 Miss. 250, 
152 So. 483 (1934), error overruled, 169 
Miss. 257, 153 So. 389 (1934). 

Law providing manner for filing claims 
against estate of decedent should be 
strictly construed against creditors. 
Jennings v. Lowery & Berry, 147 Miss. 
673, 112 So. 692 (1927). 

2. Mandatory nature of statute. 

Technical precision of form is not re- 
quired to satisfy statute regulating man- 
ner of probating claims, although statute 
is mandatory as to its substance. Deposit 
Guar. Bank & Trust Co. v. Jordan's Estate, 
171 Miss. 332, 157 So. 876 (1934); Fidelity 
Mut. Life Ins. Co. v. Goldstein, 187 Miss. 
285, 192 So. 584 (1939). 

Substance of law on subject of probating 
claims against estate is mandatory. Mer- 
chants & Mfrs. Bank v. Fox, 165 Miss. 
833, 147 So. 789 (1933); Ellsworth v. Fox, 
147 So. 790 (Miss. 1933); Jordan v. Love, 
171 Miss. 523, 157 So. 877 (1934); Strange 
v. Strange, 189 Miss. 349, 197 So. 830 
(1940). 

A claimant's pleadings were adequate 
under § 91-7-149 where she did all that 
the statute required with the limited ex- 
ception of the label on her pleading, in 
that she set forth the nature of her claim 



157 



§ 91-7-149 



Trusts and Estates 



and summarized its factual basis, and she 
complied with the important verification 
requirements of the statute. Williams v. 
Mason, 556 So. 2d 1045 (Miss. 1990). 

Whenever claim against estate of dece- 
dent, to which affidavit in compliance with 
statute is attached, is presented to clerk 
for probate, he has mandatory duty to 
admit it to probate by attaching his certif- 
icate thereto. Poyner v. Gilmore, 171 Miss. 
859, 158 So. 922 (1935). 

Statute requiring endorsement of clerk 
is mandatory. Stevens v. D.R. Dunlap 
Mercantile Co., 108 Miss. 690, 67 So. 160 
(1915). 

The statute is mandatory and an affida- 
vit which is not in effect a compliance with 
it will not give validity to the probation, 
allowance and registration of a claim. 
Cheairs v. Cheairs, 81 Miss. 662, 33 So. 
414 (1903). 

3. Claims subject to probate. 

A former wife proved a valid claim 
against her former husband's estate for 
$30,600, where there was a prior court 
judgment finding that the husband was 
$600 in arrears in alimony payments, and 
their divorce decree required the husband 
to carry a $30,000 life insurance policy on 
his own life naming the wife as the policy's 
primary beneficiary after payment of then 
existing pledged debts, but the husband 
had let the policy lapse. Raspilair v. Estate 
of Raspilair, 583 So. 2d 970 (Miss. 1991). 

In an action seeking to compel a perfect 
inventory, void certain conveyances, par- 
tition property, and establish a claim 
against an estate, §§ 91-7-149, 91-7-251 
had no application and petitioner's claim 
was improperly dismissed as untimely, 
where the claim was not for a specific 
money demand due or to become due but 
rather was an inchoate and contingent 
claim involving the ownership by co-ten- 
ancy of specific property. Maxwell v. 
Yuncker, 419 So. 2d 580 (Miss. 1982). 

Defaulted instalments of alimony can 
be recovered against the husband's per- 
sonal representative and claim therefor 
may be probated as a decree. Schaffer v. 
Schaffer, 209 Miss. 220, 46 So. 2d 443 
(1950). 

Purchaser's claim against decedent's es- 
tate for purchase price of royalty interest 
in oil and gas lease because of breach of 



warranty based on decedent's prior con- 
veyance of his interest is a probatable 
claim against the estate of decedent, there 
having been no production of oil and gas 
under the lease prior to decedent's death. 
Dale v. Hickman, 207 Miss. 606, 42 So. 2d 
810 (1949). 

A secured creditor is free to stand upon 
his security and is under no duty to pro- 
bate his debt. Campbell v. Cason, 206 
Miss. 420, 40 So. 2d 258 (1949). 

A claim that certain funds in a bank 
belong to one other than the decedent does 
not constitute a claim against the estate 
capable of being probated. Matthews v. 
Redmond, 202 Miss. 253, 32 So. 2d 123 
(1947). 

Person who took paralytic into her 
home and continuously cared for him for a 
period of two and one-half years until his 
death, pursuant to an oral agreement that 
in return such paralytic would make will 
leaving her his entire estate consisting of 
realty and personalty, where paralytic did 
execute such a will but subsequently exe- 
cuted a new will leaving all his property to 
his nephew, at least had a right to estab- 
lish her claim quantum meruit. Johnston 
v. Tomme, 199 Miss. 337, 24 So. 2d 730 
(1946). 

A claim against a decedent's estate for 
maintenance, nursing and other care fur- 
nished by an old men's home upon the 
decedent's false and fraudulent represen- 
tation that he was a pauper was not a 
claim for unliquidated damages for a tort, 
which under the statute could not be pro- 
bated, but a claim for reasonable compen- 
sation for care and support. Old Men's 
Home v. Lee's Estate, 191 Miss. 669, 2 So. 
2d 791 (1941). 

Judgments obtained against foreign ad- 
ministrator cannot be probated under 
statute and cannot be basis of claim 
against estate administered in state. 
Voyles v. Robinson, 151 Miss. 585, 118 So. 
420 (1928). 

Physicians' and druggists' bills should 
be separately probated. Gaulden v. Ram- 
sey, 123 Miss. 1, 85 So. 109 (1920). 

4. — Claim of executor or trustee. 

Under law permitting executor to pro- 
bate individual account, fact that trustee, 
acting with an executor and trustee in 
petitioning for sale of realty to pay debts, 



158 



Executors and Administrators 



91-7-149 



had a probated account did not show fraud 
and his good faith presumed. Brickell v. 
Lightcap, 115 Miss. 417, 76 So. 489 (1917), 
overruled on other grounds, Harper v. 
Harper, 491 So. 2d 189 (Miss. 1986). 

5. Statement of claims. 

No fixed form of claim is ordinarily 
required, nor is the technical accuracy and 
certainty of description essential in plead- 
ing necessary, so long as it gives such 
information concerning the nature and 
amount of the demand as to enable the 
representative to act intelligently upon it. 
Central Optical Merchandising Co. v. 
Lowe's Estate, 249 Miss. 61, 160 So. 2d 
673 (1964). 

Though a claim may satisfy minimum 
requirements the personal representative 
may require the creditor to make it more 
definite and certain where it does not 
sufficiently advise him of its essential de- 
tails or nature. Central Optical Merchan- 
dising Co. v. Lowe's Estate, 249 Miss. 61, 
160 So. 2d 673 (1964). 

Where a claimant presents in good faith 
a claim in substantial compliance with the 
statute, it is not equitable for the dece- 
dent's representation to wait until the 
time for filing claims has expired and then 
to assert that the itemized account is not 
technically sufficient and thereby to bar 
the claim. Central Optical Merchandising 
Co. v. Lowe's Estate, 249 Miss. 61, 160 So. 
2d 673 (1964). 

A claim for premiums upon insurance 
policies is sufficiently itemized where it 
shows the kind of policy, the policy num- 
ber, the period covered, the amount due on 
final audit, and the due date. Stewart v. 
Williamson's Estate, 243 Miss. 450, 138 
So. 2d 742 (1962). 

The statute clearly contemplates that, 
in presenting claims against the estate of 
a decedent, the evidence or statement of 
same probated must on its face show a 
prima facie right in the claimant to re- 
cover from the estate the amount claimed, 
and that it must disclose the nature and 
amount of the claim with sufficient previ- 
sion to bar, when paid, an action therefor. 
Johnson v. Hannon, 211 Miss. 207, 51 So. 
2d 283 (1951). 

Where a claim was for services rendered 
as a servant of deceased for washing, 
ironing, cooking, cleaning house and etc., 



for 842 days at a $1.00 per day and night 
totalling the sum of $842, the statement of 
claim was sufficient on its face to inform 
the administrator that the services were 
rendered under an implied, if not an ex- 
press, promise to pay for the same and the 
claimant should be permitted to introduce 
her proof to establish either an express or 
implied promise to pay for the services. 
Johnson v. Hannon, 211 Miss. 207, 51 So. 
2d 283 (1951). 

A claim for "personal services" is too 
broad and indefinite; the statement of 
such a claim must specify the nature and 
character of the services rendered and 
that they were rendered pursuant to a 
contract with the decedent during his life- 
time, either express or implied, that the 
services were to be compensated for. John- 
son v. Odom, 202 Miss. 213, 31 So. 2d 120 
(1947). 

Omission of the middle name or initial 
of the decedent does not invalidate a claim 
presented for probate against an estate. 
Boggan v. Scruggs, 200 Miss. 747, 29 So. 
2d 86 (1947), overruled on other grounds, 
Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 
628 (1948). 

A form of claim merely stating that it is 
in account with the named decedent, set- 
ting forth the items and signed at the end 
is not defective as failing to disclose 
whether the debt claimed is due from or to 
the decedent's estate, and if from, to 
whom. Boggan v. Scruggs, 200 Miss. 747, 
29 So. 2d 86 (1947), overruled on other 
grounds, Talbert v. Ellzey, 203 Miss. 612, 
35 So. 2d 628 (1948). 

Certified copies of petitions in suit 
against foreign administrator in foreign 
state with statutory affidavits attached 
held sufficient statement of claim against 
estate. Voyles v. Robinson, 151 Miss. 585, 
118 So. 420 (1928). 

Defective description of some of the sev- 
eral items of a claim does not render the 
probate of the claim void. Gaulden v. Ram- 
sey, 123 Miss. 1, 85 So. 109 (1920). 

"To care and attention including board, 
lodging . . . and service for 3 years prior to 
the death of said Mrs. O. D. Graves, and 
being from April 20, 1913, to April 20, 
1916," properly states claim. Gaulden v. 
Ramsey, 123 Miss. 1, 85 So. 109 (1920). 

Where purchaser of claims did not item- 
ize them for probate, but listed each, giv- 



159 



91-7-149 



Trusts and Estates 



ing amount and name of original creditor, 
this was not sufficient. Rogers v. 
Rosenstock, 117 Miss. 144, 77 So. 958 
(1918). 

The itemized account need not show 
days of month of doctor's visits; due date 
of each item held to be first day of month 
in which charged. Duffy v. Kilroe, 116 
Miss. 7, 76 So. 681 (1917). 

Statement of claim sufficiently signed 
where creditor signed affidavit attached 
thereto. Bankston v. Coopwood, 99 Miss. 
511, 55 So. 48 (1911). 

A claim for professional services not 
based upon an itemized account is suffi- 
ciently stated for probate if in writing and 
if it specifies a definite sum as due "for 
legal advice and services rendered" to de- 
ceased. Foster v. Shaffer, 84 Miss. 197, 36 
So. 243 (1904). 

6. Clerk's certificate. 

Defendants' promissory notes were 
properly probated where the clerk's certif- 
icate showed that each note was a true 
and correct copy of the original note and 
that after each original note was filed and 
numbered it was withdrawn and the copy 
substituted; the fact that the clerk did not 
mark on any of the original notes the word 
"filed" and did not number the original 
notes did not invalidate the probation of 
the notes. Estate of Wilson v. National 
Bank of Commerce, 364 So. 2d 1117 (Miss. 
1978). 

Where a creditor's claim against a dece- 
dent's estate is filed with the chancery 
clerk within the statutory six-month pe- 
riod, it is the purpose of the 1934 amend- 
ment to this section [Code 1942, § 568] to 
allow the clerk to enter a nunc pro tunc 
indorsement on the claim after the expi- 
ration of the statutory period. Ethridge v. 
Estate of Paul, 196 So. 2d 530 (Miss. 
1967). 

Bill against chancery clerk and his 
surety for failure to attach certificate to 
claim showing it was probated, allowed, 
and registered, because of which failure 
claim was disallowed, held not demur- 
rable since claimant would at least be 
entitled to nominal damages. Poyner v. 
Gilmore, 171 Miss. 859, 158 So. 922 
(1935). 

Claim rendered invalid by failure of 
clerk to make any endorsement showing 



probate, registration and allowance. Ste- 
vens v. D.R. Dunlap Mercantile Co., 108 
Miss. 690, 67 So. 160 (1915). 

Statute requiring endorsement of clerk 
is mandatory, but court within time period 
before claim is barred, where clerk's fail- 
ure was due to ignorance of duty, may 
enter order nunc pro tunc authorizing 
clerk to approve and allow claim. Stevens 
v. D.R. Dunlap Mercantile Co., 108 Miss. 
690, 67 So. 160 (1915). 

Clerk's certificate not invalidated by 
omission of word "probated" where shown 
statute complied with by claimant. Davis 
v. Blumenberg, 107 Miss. 432, 65 So. 503 
(1914). 

7. Withdrawal of instruments. 

Defendants' promissory notes were 
properly probated where the clerk's certif- 
icate showed that each note was a true 
and correct copy of the original note and 
that after each original note was filed and 
numbered it was withdrawn and the copy 
substituted; the fact that the clerk did not 
mark on any of the original notes the word 
"filed" and did not number the original 
notes did not invalidate the probation of 
the notes. Estate of Wilson v. National 
Bank of Commerce, 364 So. 2d 1117 (Miss. 
1978). 

Clerk keeps original note probated 
against estate until creditor requests 
withdrawal thereof, and clerk's statutory 
obligation to make certified copy to be 
retained by him arises only on claimant's 
request to withdraw original and exists 
only while original yet remains in clerk's 
hands. Merchants' & Mfrs.' Bank v. Busby, 
172 Miss. 394, 160 So. 577 (1935). 

Clerk held not liable for failure to cer- 
tify copies of notes filed against estate, 
resulting in disallowance of claim, in ab- 
sence of allegations that he had assured 
creditor at time of withdrawal of originals 
that certified copies had been made and 
filed, or promised to make and file certi- 
fied copies after withdrawal. Merchants' & 
Mfrs.' Bank v. Busby, 172 Miss. 394, 160 
So. 577 (1935). 

Probate of note withdrawn by claimant 
held void for absence of clerk's seal on 
certificate on copy of note, although certif- 
icate of probate was sealed. King v. Jones, 
171 Miss. 886, 158 So. 796 (1935), error 



160 



Executors and Administrators 



§ 91-7-149 



overruled, 171 Miss. 890, 158 So. 457 
(1935). 

Statute requires creditor probating 
claim against estate on deceased's note, in 
order to withdraw original note from 
clerk's office, to furnish for administrator, 
heirs, and other parties in interest full 
and true copy made or verified by clerk, 
accompanied by clerk's certificate, in- 
dorsed on copy or appended thereto, which 
certificate and copy must both remain on 
file among papers in clerk's office. Jordan 
v. Love, 171 Miss. 523, 157 So. 877 (1934). 

Where clerk certified copy of deceased's 
note filed for probate and sent certificate 
and original note back to claimant, who 
filed them away without observing irreg- 
ularity until after period for probation had 
expired, claim was not allowable, since 
statute was not complied with. Jordan v. 
Love, 171 Miss. 523, 157 So. 877 (1934). 

Statute regulating probate of claims 
and authorizing withdrawal of original 
note where clerk retains copy, held to 
authorize withdrawal of original attached 
affidavit where clerk retained a certified 
copy. Deposit Guar. Bank & Trust Co. v. 
Jordan's Estate, 171 Miss. 332, 157 So. 
876 (1934). 

Statute requires clerk of court, when 
original instruments executed by dece- 
dent are withdrawn from files, to make 
and retain certified copies. Merchants & 
Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 
789 (1933). 

Clerk's certificate on copies retained 
when original instruments executed by 
decedent are withdrawn from files, must 
be under hand and seal of clerk and must 
show clerk has had originals placed before 
him and that copies retained are true 
copies. Merchants & Mfrs. Bank v. Fox, 
165 Miss. 833, 147 So. 789 (1933). 

It is sufficient for clerk to indorse on 
copy retained of instrument executed by 
decedent and withdrawn from files that 
same is "true copy of original this day 
exhibited to me," dating certificate, sign- 
ing same, and affixing thereto his official 
seal. Merchants & Mfrs. Bank v. Fox, 165 
Miss. 833, 147 So. 789 (1933). 

Where original note of decedent is with- 
drawn from files, all indorsements and 
credits must be shown by copy retained 
and certificate. Merchants & Mfrs. Bank 
v. Fox, 165 Miss. 833, 147 So. 789 (1933). 



8. Defective probate. 

A claim upon a note is properly disal- 
lowed where the original is not filed. Stew- 
art v. Williamson's Estate, 243 Miss. 450, 
138 So. 2d 742 (1962). 

Claim by deceased's brother for a doc- 
tor's bill incurred by the decedent in his 
last illness, there being no evidence that 
the brother paid the claim at the request 
of the deceased, was properly refused 
since under the law such a claim should be 
separately probated on the affidavit of the 
original creditor. Martin v. De Jarnette, 
185 Miss. 76, 187 So. 202 (1939). 

Holder of note against estate must pro- 
bate original note or account for loss; 
claimant on open account must itemize as 
to dates and sums furnished. Levy v. Mer- 
chants' Bank & Trust Co., 124 Miss. 325, 
86 So. 807 (1921). 

Decree disallowing claim not probated 
according to law affirmed where record 
does not contain note or account at- 
tempted to be probated. Home v. McAlpin, 
101 Miss. 129, 57 So. 420 (1912). 

In suit against executor for debt due by 
testator, proof of correctness of claim prop- 
erly rejected where not signed by the 
creditor and no affidavit attached. Walker 
v. Nelson, 87 Miss. 268, 39 So. 809 (1906). 

9. Affidavit. 

Where the timely affidavit filed by the 
creditor designated as the credit account 
the decedent's business rather than the 
decedent himself, and it neither presented 
written evidence of the claim nor an item- 
ized account thereof, it provided no infor- 
mation to the administrator of the estate 
from which he could reasonably act in 
either allowing or disallowing the claim, 
and the trial court properly refused to 
allow the creditor to amend his complaint 
after the expiration of 6 months. Stuart C. 
Irby Co. v. Patton, 301 So. 2d 845 (Miss. 
1974). 

Where statute of limitations would not 
run against claim of brother for services 
and necessaries furnished to his insane 
sister with expectation of repayment, un- 
til her death, it is not required that the 
affidavit state the time when decedent 
died, since the death is already estab- 
lished by the record giving jurisdiction of 
the case to the chancery court. Talbert v. 



161 



§ 91-7-149 



Trusts and Estates 



Ellzey, 203 Miss. 612, 35 So. 2d 628 
(1948). 

A claim based on a loan to the deceased 
to buy hotel bonds which were to be a gift 
to the creditor, evidenced by a check alleg- 
edly signed by the creditor, was not prop- 
erly probated as required hereunder, 
where there was a variance in the initials 
of the name of the creditor as it appeared 
on the statement of accounts, check and 
affidavit in support of the accounts, with 
no showing that the various names de- 
scribed the same person. Strange v. 
Strange, 189 Miss. 349, 197 So. 830 
(1940). 

Affidavit by creditor's agent amounts to 
no affidavit at all. Persons v. Griffin, 112 
Miss. 643, 73 So. 624 (1917). 

Affidavit failing to allege that claim "is 
not usurious" is insufficient. Cudahy 
Packing Co. v. Miller's Estate, 103 Miss. 
435, 60 So. 574 (1913). 

Affidavit by creditor's husband as her 
agent, fatally defective as statute requires 
that it be by creditor. Saunders v. Ste- 
phenson, 94 Miss. 676, 47 So. 783 (1908). 

The clerk had no jurisdiction to allow 
and register a claim where the probate 
failed to conform to the statute in the 
following particulars: The affidavit did not 
after the word "correct" incorporate the 
words "and owing from the deceased," and 
did not contain the words "that it is not 
usurious" nor the words "and that neither 
the affiant nor any person has received 
payment." Cheairs v. Cheairs, 81 Miss. 
662, 33 So. 414 (1903). 

10. Payment of claims. 

Will provision directing probate of 
claims against decedent's estate and ex- 
cepting "secured debts not due" cannot 
defeat obligation of the estate to pay a 
probated secured claim. Campbell v. 
Cason, 206 Miss. 420, 40 So. 2d 258 
(1949). 

An administrator has no right to pay a 
probated claim for services rendered to 
the deceased in his lifetime, in the ab- 
sence of either an express or implied 
promise on the part of the decedent to pay 
for the same. Johnson v. Odom, 202 Miss. 
213, 31 So. 2d 120 (1947). 

Claims for services rendered by intes- 
tate's next of kin in looking after intestate, 
were properly disallowed where there was 



no promise, agreement or circumstances 
from which it could be reasonably inferred 
that the intestate expected to pay, or that 
such next of kin expected to receive pay, 
for such services. Wells v. Brooks, 199 
Miss. 327, 24 So. 2d 533 (1946). 

Claim for services rendered by husband 
of daughter of intestate's nephew in as- 
sisting the nephew in managing the intes- 
tate's farm, was properly disallowed 
where there was no circumstances justify- 
ing any assent, express or implied, on the 
part of the intestate to pay the husband, 
and where he failed to show that he ren- 
dered any service of substantial benefit. 
Wells v. Brooks, 199 Miss. 327, 24 So. 2d 
533 (1946). 

Husband of daughter of deceased's 
nephew by half blood was entitled to fair 
and adequate compensation on a quantum 
meruit basis for services rendered in man- 
aging deceased's farm, where such ser- 
vices were performed in expectation that 
deceased would carry out unenforceable 
promise to leave her property to the 
daughter if husband performed such ser- 
vices. Wells v. Brooks, 199 Miss. 327, 24 
So. 2d 533 (1946). 

Claim against testator's estate, which 
purported to be itemized account or state- 
ment of claim in writing, which charged 
estate with purchase of note on which 
there was balance due, would be disal- 
lowed, where evidence clearly disclosed 
that there was no sale of note by claimant 
to testator, but that testator agreed to 
collect note for claimant, pay certain 
amount on debt of testator's son to testa- 
tor and turn over balance to claimant, and 
that testator merely became claimant's 
agent or trustee for collection of note. 
First Columbus Nat'l Bank v. Holesapple- 
Dillman, 174 Miss. 234, 164 So. 232 
(1935). 

Administrator is without authority to 
pay claim not presented as provided by 
this section [Code 1942, § 568] .A. A. 
Lehman & Co. v. Powe, 95 Miss. 446, 49 
So. 622 (1909). 

Decree directing distribution among 
heirs does not affect right to payment of 
probated claim; fact that claimant is also 
administrator who has filed its final ac- 
count is immaterial. Oliver v. Smith, 94 
Miss. 879, 49 So. 1 (1909). 



162 



Executors and Administrators 



§ 91-7-149 



11. Unprobated claims. 

Services rendered under an oral agree- 
ment between a father and daughter 
whereby the former agreed to leave the 
daughter her home in consideration of her 
living with him and taking care of him, 
constituted an unliquidated claim which 
could not be probated as required by this 
section [Code 1942, § 568], and being a 
liability in the strictest sense of the word, 
the daughter was not barred because the 
claim was not probated but was entitled to 
recover the reasonable value of her ser- 
vices. Stephens v. Duckworth, 188 Miss. 
626, 196 So. 219 (1940). 

The court has no power upon ex parte 
petitions to authorize a payment of an 
unprobated claim. Townsend v. Beavers, 
185 Miss. 312, 188 So. 1 (1939), error 
overruled, 185 Miss. 327, 189 So. 90 
(1939). 

While heirs and distributees, so far as 
they are each concerned, may consent to 
the payment by the administrator of un- 
probated debts against the estate, and 
after such consent and the payment in 
pursuance thereof will, in the absence of 
fraud or misrepresentation, be precluded 
from any attempt on their part to charge 
the administrator therewith, this does not 
bind or affect the interests of those who 
did not so consent. Townsend v. Beavers, 
185 Miss. 312, 188 So. 1 (1939), error 
overruled, 185 Miss. 327, 189 So. 90 
(1939). 

Payment of promissory notes which 
were not probated as required by this 
section [Code 1942, § 568] could not be 
surcharged against the administrator as 
to those distributees of the estate who 
consented thereto, although such consent 
was not binding on heirs and devisees who 
did not consent to such payment. Town- 
send v. Beavers, 185 Miss. 312, 188 So. 1 
(1939), error overruled, 185 Miss. 327, 189 
So. 90 (1939). 

Court cannot assume justice or correct- 
ness of claim not duly probated. Persons v. 
Griffin, 112 Miss. 643, 73 So. 624 (1917). 

Refusal to permit administrator to file 
plea, after close of evidence, setting up 
failure to probate within time fixed by 
statute, was erroneous. Johnson v. Suc- 
cess Brick Mach. Co., 93 Miss. 169, 46 So. 
957 (1908). 



Setoff cannot be based on unprobated 
claim. Cohn v. Carter, 92 Miss. 627, 46 So. 
60 (1908). 

12. Limitations. 

The rule that facts which prevented the 
running of the statute of limitations 
against a probated claim should appear in 
some form on probate thereof and cannot 
be made to appear for the first time by 
evidence offered when the claim is under 
consideration in administration of de- 
ceased's estate, does not apply to services 
and necessaries furnished by a brother to 
his insane sister, since limitations in such 
case does not begin to run until her death. 
Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 
628 (1948). 

Motion of claimant, who after expira- 
tion of six months for probate, moved that 
clerk be allowed to make proper certifi- 
cates of true copies of notes withdrawn 
and to sign probate and allowance, held 
properly overruled. Merchants & Mfrs. 
Bank v. Fox, 165 Miss. 833, 147 So. 789 
(1933). 

Estate of nonresident within state ad- 
ministered as though there were no other 
administration, and creditor may probate 
claim barred in other state but not in this 
state. Buckingham Hotel Co. v. Kimberly, 
138 Miss. 445, 103 So. 213 (1925). 

Full faith and credit clause held not to 
require treating order of dismissal in an- 
other state of probate claim for late filing 
as bar to claim in this state. Buckingham 
Hotel Co. v. Kimberly, 138 Miss. 445, 103 
So. 213 (1925). 

No action can be maintained on note not 
probated within time fixed. Johnson v. 
Success Brick Mach. Co., 93 Miss. 169, 46 
So. 957 (1908). 

13. Written evidence. 

In a probate proceeding involving a 
claim based upon an oral contract be- 
tween the claimant and the decedent 
whereby the claimant would lend the de- 
cedent $11,000 and the decedent would 
leave a bequest of certain real property to 
the claimant, the chancellor properly ad- 
mitted into evidence the claimant's can- 
celled check and the document reporting 
to be the defective holographic will of the 
decedent, neither of which had been at- 
tached as exhibits to the claim, where the 



163 



91-7-151 



Trusts and Estates 



claim itself was based upon the oral con- 
tract and the exhibits were merely intro- 
duced as evidence in support of the claim. 
McKellar's Estate v. Brown, 404 So. 2d 
550 (Miss. 1981). 

The chancellor properly dismissed an 
amended probate of claim where the al- 
leged written contract between the dece- 
dent and the claimant did not in and of 
itself sufficiently state a claim against the 
estate and where the claimant failed to 
allege and prove compliance with the var- 
ious conditions of the agreement. French 
v. Druetta, 399 So. 2d 1327 (Miss. 1981). 

Where the timely affidavit filed by the 
creditor designated as the credit account 
the decedent's business rather than the 
decedent himself, and it neither presented 
written evidence of the claim nor an item- 
ized account thereof, it provided no infor- 
mation to the administrator of the estate 
from which he could reasonably act in 
either allowing or disallowing the claim, 
and the trial court properly refused to 
allow the creditor to amend his complaint 
after the expiration of 6 months. Stuart C. 
Irby Co. v. Patton, 301 So. 2d 845 (Miss. 
1974). 

Where the respective proofs of two notes 
presented as claim against an estate re- 
cited that the claim was "annexed" and 
that the original was presented therewith, 
and described the claim with great partic- 



ularity and with such accuracy that there 
could be no mistake as to what claims 
were referred to, there was a sufficient 
compliance with this section [Code 1942, 
§ 568], notwithstanding that the proofs 
were not physically attached to the 
claims, this section being mandatory as to 
substance but not as to letter. Fidelity 
Mut. Life Ins. Co. v. Goldstein, 187 Miss. 
285, 192 So. 584 (1939). 

Claims, giving claimant's name and 
stating that specified amount is due for 
clearing land, should be allowed where 
correctness proved by evidence of amount 
of work and price per acre is shown by 
written agreement signed by deceased. 
Fairley v. Fairley, 120 Miss. 400, 82 So. 
267 (1919). 

Joint and several note of claimant and 
deceased husband with attached receipt of 
payment in full by claimant, was written 
evidence on its face of her claim for one- 
half the payment. Wells v. McCollough, 
113 Miss. 401, 74 So. 289 (1917). 

It was error to disallow claim of creditor 
who lost original of his claim after pro- 
bate, but filed copies thereof on day set for 
filing. Keiffer Bros. Co. v. Bank of Com- 
merce, 105 Miss. 662, 63 So. 189 (1913). 

Claim properly disallowed where claim- 
ant filed only copy of receipt signed by 
decedent, evidencing his claim. McMahon 
v. Foy, 104 Miss. 309, 61 So. 421 (1913). 



RESEARCH REFERENCES 



ALR. Appealability of probate orders 
allowing or disallowing claims against es- 
tate. 84 A.L.R.4th 269. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators § 628. 

19 Am. Jur. Trials, Actions by or against 
a decedent's estate, §§ 1 et seq. 



Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-7-151. Claims to be registered in ninety days or barred; 
amendment of affidavits. 

All claims against the estate of deceased persons, whether due or not, shall 
be registered, probated and allowed in the court in which the letters testa- 
mentary or of administration were granted within ninety (90) days after the 
first publication of notice to creditors to present their claim. Otherwise, the 
same shall be barred and a suit shall not be maintained thereon in any court, 
even though the existence of the claim may have been known to the executor 



164 



Executors and Administrators 



§ 91-7-151 



or administrator. Where the affidavit is made in good faith and the claim is 
registered, probated and allowed by the clerk but the affidavit is defective or 
insufficient, the court may allow the affidavit to be amended so as to conform 
to the requirements of the statute, at any time before the estate is finally 
settled; whereupon the probate shall be as effective and the claim as valid 
against the estate as if the affidavit had been correct and sufficient in the first 
instance. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 20 (5); 1857, ch. 60, art. 83; 
1871, § 1141; 1880, § 2028; 1892, § 1933; Laws, 1906, § 2107; Hemingway's 
1917, § 1775; Laws, 1930, § 1672; Laws, 1942, § 569; Laws, 1926, ch. 157; 
Laws, 1975, ch. 373, § 5, eff from and after January 1, 1976. 

JUDICIAL DECISIONS 



1. In general; applicability. 

2. — Applicability to particular circum- 

stances. 

3. Timeliness. 

4. Waiver of bar. 

5. Accrual of claim before or after death. 

6. Claims on suits brought before or af- 

ter death. 

7. Defective notice. 

8. Amendment of claim or affidavit. 

1. In general; applicability. 

Section 91-7-151 applies only to mone- 
tary claims against an estate. Allen v. 
Mayer, 587 So. 2d 255 (Miss. 1991). 

Executrix was properly surcharged for 
payment of decedent's debts which had 
not been probated, registered, or allowed. 
Harper v. Harper, 491 So. 2d 189 (Miss. 
1986). 

The statute is not applicable to a situa- 
tion where a party denies that it is in- 
debted to an estate and raises no claim 
against the estate. Bible Ministry Ass'n v. 
Merritt, 391 So. 2d 641 (Miss. 1980). 

The six months statute of limitations as 
to claims of creditors is irrelevant to an 
action against the personal representative 
and heirs of a decedent seeking adjudica- 
tion of the existence of a partnership and 
an accounting of the partnership property. 
Kelly v. Windham, 204 So. 2d 477 (Miss. 
1967). 

An unliquidated claim is not 
probatable. Powell v. Buchanan, 245 Miss. 
4, 147 So. 2d 110 (1962). 

This section [Code 1942, § 569] oper- 
ates to bar a claim for services, notwith- 
standing a dispute as to rate of compen- 



sation. Love v. Strong's Estate, 234 Miss. 
869, 108 So. 2d 215 (1959). 

This section [Code 1942, § 569] applies 
only to contractual claims and not to those 
in tort. Mossier Acceptance Co. v. Moore, 
218 Miss. 757, 67 So. 2d 868 (1953); Han- 
cock v. Pyle, 191 Miss. 546, 3 So. 2d 851 
(1941). 

The term "claim" in statutes relating to 
claims against estates includes not only 
debts already due, but unmatured debts, 
but it applies only to specific money de- 
mands due or to become due and not to 
inchoate and contingent claims. Reedy v. 
Alexander, 202 Miss. 80, 30 So. 2d 599 
(1947). 

A claim against the estate of a deceased 
person is a demand of a pecuniary nature, 
which could have been enforced against 
the decedent during his lifetime; the term 
does not include a claim to the proceeds of 
the sale of personal property of an estate. 
Reedy v. Alexander, 202 Miss. 80, 30 So. 
2d 599 (1947). 

That widow's petition, claiming the pro- 
ceeds of certain personalty sold by order of 
the court as her own rather than that of 
the estate, had the oath of probate at- 
tached to it, and the clerk certified it had 
been probated, registered and allowed, did 
not convert it to a probatable or probated 
claim. Reedy v. Alexander, 202 Miss. 80, 
30 So. 2d 599 (1947). 

The statute of limitations does not bar 
the claim of an administrator against the 
estate for an individual debt duly pro- 
bated and not barred at the time of his 
appointment. Oliver v. Smith, 94 Miss. 
879, 49 So. 1 (1909). 



165 



§ 91-7-151 



Trusts and Estates 



Claim for damages is not within this 
section [Code 1942, § 569]; the section 
refers to contractual claims only. Feld v. 
Borodofski, 87 Miss. 727, 40 So. 816 
(1906). 

This section [Code 1942, § 569] has no 
application to a surviving partner admin- 
istering partnership assets. Lance v. Cal- 
houn, 85 Miss. 375, 37 So. 1014 (1905). 

2. — Applicability to particular cir- 
cumstances. 

Statute was inapplicable to a claim for 
furniture, since the claim was not pecuni- 
ary in nature and was therefore not a 
probatable claim within the meaning of 
the statute. Allen v. Mayer, 587 So. 2d 255 
(Miss. 1991). 

Since the liability of the deceased guar- 
antor of a promissory note was contingent, 
and would possibly never occur, § 91-7- 
151 did not require that it be filed for 
probate within a period of 90 days follow- 
ing first notice to creditors, and thus the 
trial court erred in dismissing the lender 
bank's suit against the guarantor's estate. 
Peoples Bank v. Wyatt, 441 So. 2d 117 
(Miss. 1983). 

In an action seeking to compel a perfect 
inventory, void certain conveyances, par- 
tition property, and establish a claim 
against an estate, §§ 91-7-149, 91-7-251 
had no application and petitioner's claim 
was improperly dismissed as untimely, 
where the claim was not for a specific 
money demand due or to become due but 
rather was an inchoate and contingent 
claim involving the ownership by co-ten- 
ancy of specific property. Maxwell v. 
Yuncker, 419 So. 2d 580 (Miss. 1982). 

A creditor's claim against decedent's es- 
tate for default on an unsecured note 
assumed by decedent was barred by this 
section's 90 day statute of limitations, 
where the balance due under the note was 
not an inchoate or contingent claim ex- 
cepted from the statute, but was a claim 
enforceable against decedent during his 
lifetime. Barrett v. Moffitt, 381 So. 2d 624 
(Miss. 1980). 

The claim of a bank, based on an agree- 
ment between the decedent and the man- 
aging director of the bank for services to 
be rendered the decedent in consideration 
of an assignment of 30 percent of the 
decedent's interest in another's estate, 



was not a joint, undivided and inchoate 
interest or a contingent unliquidated 
claim not subject to probate provisions 
and the time limitation with which to file 
the claim against an estate, but was in- 
stead a claim for personal services which 
was barred by the bank's failure to file its 
claim until 6 months had elapsed from the 
first publication notice to creditors by the 
administrator. Vacek v. Hoerner-Bank of 
W. Berlin, Germany, 258 So. 2d 793 (Miss. 
1972). 

Where payee failed to timely probate a 
claim on a note of deceased, and was 
barred from asserting claim on the note as 
an unsecured creditor, he was entitled to 
recovery of the salvage value of the de- 
stroyed automobile which had been mort- 
gaged to secure the note. Mossier Accep- 
tance Co. v. Moore, 218 Miss. 757, 67 So. 
2d 868 (1953). 

Purchaser's claim against decedent's es- 
tate for purchase price of royalty interest 
in oil and gas lease because of breach of 
warranty based on decedent's prior con- 
veyance of his interest, there having been 
no production of oil and gas under the 
lease prior to decedent's death, was a 
probatable claim against decedent's estate 
which was barred for failure to probate 
same within the period prescribed by this 
section [Code 1942, § 569]. Dale v. 
Hickman, 207 Miss. 606, 42 So. 2d 810 
(1949). 

Claims for the proceeds of timber sold 
from land purchased at an invalid foreclo- 
sure sale, and rents received by the pur- 
chaser, are not required to be probated 
within six months, the claims coming 
within the purview of such requirement 
being such as, if paid by the executor or 
administrator, would prima facie entitle 
him to credit therefor. Hancock v. Pyle, 
191 Miss. 546, 3 So. 2d 851 (1941). 

Where executor failed to probate claim 
against estate secured by mortgage, devi- 
see was not entitled to have land exoner- 
ated and claim paid out of general assets. 
Howell v. Ott, 182 Miss. 252, 180 So. 52 
(1938), error overruled, 182 Miss. 286, 181 
So. 740 (1938). 

Unliquidated claim against negligent 
bank director is not a claim for probate 
against his estate. Boyd v. Applewhite, 
121 Miss. 879, 84 So. 16 (1920), modified, 
123 Miss. 185, 85 So. 87 (1920). 



166 



Executors and Administrators 



§ 91-7-151 



The limitation provided under this sec- 
tion [Code 1942, § 569] does not apply 
where a will creates an express trust for 
the payment of debts and the executor 
follows the directions of the will as pro- 
vided in Code 1942, § 518. Gordon v. 
McDougall, 84 Miss. 715, 37 So. 298 
(1904). 

The liability of a surety on a guardian's 
bond is not a probatable claim against the 
estate of a deceased surety and is not 
barred by any statute of limitations relat- 
ing to the probate of claims. Savings Bldg. 
& Loan Ass'n v. Tart, 81 Miss. 276, 32 So. 
115 (1902). 

3. Timeliness. 

A claim presented for probate on De- 
cember 27, 1946, was not presented 
within the six-months period where the 
first notice to creditors was published 
June 26, 1946. Paine Plumbing & Supply 
Co. v. McMurtray's Estate, 203 Miss. 334, 
34 So. 2d 676 (1948). 

Where it appeared that on the death of 
one partner, the surviving partner had 
agreed to hold the shares of two of the 
decedent's heirs as an active trust for 
their benefit until demand was made by 
them for payment of the principal, that all 
of the parties to the agreement had died 
and the estate of the surviving partner 
had been administered, with due notice 
given to creditors, a bill filed by heirs of 
the first deceased partner, more than 
three and one-half years after the death of 
the surviving partner and after the estate 
had been administered and the personal 
property distributed, and without a claim 
having been presented to the administra- 
trix of his estate, to fix and impose a 
money decree upon the administratrix 
and the heirs at law of the surviving 
partner, was barred by the nonclaim stat- 
ute, and also by the statute relating to 
limitation of actions on unwritten con- 
tracts. Whitaker v. Davenport, 193 Miss. 
523, 10 So. 2d 202 (1942). 

4. Waiver of bar. 

The bar of the statute cannot be waived 
by the conduct of the administrator, how- 
ever misleading or designing. Harkness v. 
Kansas City, M. & B.R. Co., 33 So. 77 
(Miss. 1902). 



5. Accrual of claim before or after 
death. 

Executrix would be surcharged for the 
amount the testamentary trust property 
was damaged or put in jeopardy due to her 
mortgaging of estate's unencumbered real 
property as security for debt incurred by 
testator which was never probated. Har- 
per v. Harper, 491 So. 2d 189 (Miss. 1986). 

A vendor's election to probate and reg- 
ister a promissory note executed in con- 
junction with a deed of trust against the 
purchaser's estate, which was not pur- 
sued, was lost at the end of the 90 day 
limitation period of § 91-7-151; however, 
that section, as qualified by § 91-7-167, 
did not bar the vendor's election to pursue 
the trust or lien establishment against the 
specific real estate, which arose at the 
time the deed of trust was mistakenly 
cancelled by the bank. First Nat'l Bank v. 
Huff, 441 So. 2d 1317 (Miss. 1983). 

Where statutory liability of bank stock- 
holder had accrued prior to stockholder's 
death but claim had not been probated, 
suit to recover such statutory liability 
instituted after expiration of statutory pe- 
riod for presenting claims held barred. 
Gray v. Love, 173 Miss. 390, 161 So. 679 
(1935). 

Claim against bank stockholder for 
statutory liability having accrued prior to 
stockholder's death, which occurred after 
bank became insolvent and closed, was 
required to be probated the same as other 
unsecured debts. Gray v. Love, 173 Miss. 
390, 161 So. 679 (1935). 

Compliance with statute providing that 
all claims against estate of deceased per- 
sons, whether due or not shall be regis- 
tered, probated, and allowed in court in 
which letters testamentary or of adminis- 
tration were granted within six months 
after first publication of notice to credi- 
tors, is mandatory. Gray v. Love, 173 Miss. 
390, 161 So. 679 (1935). 

A decedent's estate is not liable for an 
assessment against the decedent as a 
stockholder in a failed national bank, 
made in the decedent's lifetime, where a 
claim therefor was not presented within 
the time limited by statute. Mann v. 
Kleisdorff, 16 F.2d 997 (5th Cir. 1927). 

Liability of endorser of note as collateral 
security for another, not having matured 



167 



§ 91-7-151 



Trusts and Estates 



at endorser's death, need not be probated 
as claim. Sledge & Norfleet Co. v. Dye, 140 
Miss. 779, 106 So. 519 (1926). 

Claim against estate of deceased stock- 
holder in bank, for double liability, is 
barred unless probated, where stock- 
holder died after liability accrued. Board 
of Bank Exmrs. v. Grenada Bank, 135 
Miss. 242, 99 So. 903 (1924). 

Claims maturing before decedent's 
death are barred, notwithstanding pro- 
bate, by failure to sue thereon within four 
years and six months from grant of let- 
ters. Rogers v. Rosenstock, 117 Miss. 144, 
77 So. 958 (1918). 

6. Claims on suits brought before or 

after death. 

Law requiring claims to be probated 
within six months applies only to claims 
on which suit was not brought during 
decedent's lifetime. Henry v. W.T. 
Rawleigh Co., 152 Miss. 320, 120 So. 188 
(1929); Dillard & Coffin Co. v. Woollard, 
124 Miss. 677, 87 So. 148 (1921). 

7. Defective notice. 

The failure of the illegitimate children 
of a decedent to assert any claim in the 
decedent's estate until after the expiration 
of 90 days from the date of the first pub- 
lication of notice to creditors did not bar 
their claim of heirship or wrongful action 
where the petition for letters of adminis- 
tration specifically named the illegitimate 
children as the natural children of the 
decedent and the administratrix failed to 
give them notice of the letters' issuance. 
Leflore ex rel. Primer v. Coleman, 521 So. 
2d 863 (Miss. 1988). 

Note executed by deceased held not 
barred by limitations, though over six 
months had elapsed since probate pro- 
ceedings, where proceedings were had 
without proper notice because of omission 
of word "claims" in notice to creditors, and 
having no equivalent word since, though 
creditors may file and prove claims, 
whether statutory notice was given or not, 
they are not barred from right to probate 
unless notice conforms to statute. 
Bankston v. First Nat'l Bank & Trust Co., 
177 Miss. 719, 171 So. 18 (1936). 

Administrator who invoked strict doc- 
trine that probate of note was invalid 
because clerk's name and seal of court 



were not on copy of note held required to 
conform to strict compliance with statu- 
tory notice for probate proceedings. 
Bankston v. First Nat'l Bank & Trust Co., 
177 Miss. 719, 171 So. 18 (1936). 

Where notice given to creditors is insuf- 
ficient to set six months' statute in motion, 
creditors may amend probate of claims at 
any time before estate is closed, without 
court's leave. Bell v. Union & Planters' 
Bank & Trust Co., 158 Miss. 486, 130 So. 
486 (1930), motion denied, 161 Miss. 275, 
131 So. 257 (1930). 

Claim not barred by failure to probate 
where notice not published for three con- 
secutive weeks and no proof of publication 
made and filed with clerk. Boutwell v. 
Farmers' & Traders' Bank, 118 Miss. 50, 
79 So. 1 (1918). 

8. Amendment of claim or affidavit. 

The chancellor properly dismissed an 
amended probate of claim where the al- 
leged written contract between the dece- 
dent and the claimant did not in and of 
itself sufficiently state a claim against the 
estate and where the claimant failed to 
allege and prove compliance with the var- 
ious conditions of the agreement. French 
v. Druetta, 399 So. 2d 1327 (Miss. 1981). 

Where the timely affidavit filed by the 
creditor designated as the credit account 
the decedent's business rather than the 
decedent himself, and it neither presented 
written evidence of the claim nor an item- 
ized account thereof, it provided no infor- 
mation to the administrator of the estate 
from which he could reasonably act in 
either allowing or disallowing the claim, 
and the trial court properly refused to 
allow the creditor to amend his complaint 
after the expiration of 6 months. Stuart C. 
Irby Co. v. Patton, 301 So. 2d 845 (Miss. 
1974). 

Amendment of a claim after the time for 
filing is permissible unless it increases the 
amount of the claim, sets up a new cause 
of action, and materially changes the ba- 
sis for the claim. Central Optical Mer- 
chandising Co. v. Lowe's Estate, 249 Miss. 
61, 160 So. 2d 673 (1964). 

A claim for the unpaid balance on an 
open account for merchandise sold is a 
sufficient "itemized account" to be 
amended after the period for filing and to 
be applified by evidence where contested. 



168 



Executors and Administrators 



§ 91-7-153 



Central Optical Merchandising Co. v. 
Lowe's Estate, 249 Miss. 61, 160 So. 2d 
673 (1964). 

A claim for a balance due on account for 
merchandise sold is susceptible of amend- 
ment after expiration of the time for filing 
where it revealed debits and credits, al- 
leged the balance, and was accompanied 
by photostats of invoices. Central Optical 
Merchandising Co. v. Lowe's Estate, 249 
Miss. 61, 160 So. 2d 673 (1964). 

Where certain accounts against an es- 
tate were supported by affidavits which 



did not show the authority of the person 
signing, amended affidavits could be filed 
in each of the claims under this section 
[Code 1942, § 569]. Hughes v. Box, 224 
Miss. 513, 81 So. 2d 242 (1955). 

Statute requiring court order authoriz- 
ing amendment of affidavit to probated 
claims applies to amendments after expi- 
ration of six months' period. Bell v. Union 
& Planters' Bank & Trust Co., 158 Miss. 
486, 130 So. 486 (1930), motion denied, 
161 Miss. 275, 131 So. 257 (1930). 



RESEARCH REFERENCES 



ALR. Amendment of claim against de- 
cedent's estate after expiration of time for 
filing claims. 56 A.L.R.2d 627. 

Power and responsibility of executor or 
administrator to compromise claim 
against estate. 72 A.L.R.2d 243. 

What constitutes rejection of claim 
against estate to commence running of 



statute of limitations applicable to re- 
jected claims. 36 A.L.R.4th 684. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 1188, 1190, 1194. 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 752-767. 



§ 91-7-153. Registration of claim stops limitation. 

The presentation of a claim, and having it probated and registered as 
required by law, shall stop the running of the general statute of limitations as 
to such claim, whether the estate be solvent or insolvent. 

SOURCES: Codes, 1880, § 2062; 1892, § 1936; Laws, 1906, § 2110; Hemingway's 
1917, § 1778; Laws, 1930, § 1673; Laws, 1942, § 570. 

JUDICIAL DECISIONS 



1. In general. 

In a probate proceeding based upon an 
oral contract whereby the decedent prom- 
ised to bequeath to the claimant a parcel 
of real property in return for a loan of 
$11,000, the cause of action for breach of 
the oral contract arising out of the failure 
of the will to be admitted to probate did 
not arise until the death of the decedent; 
therefore, where the claim for probate was 
filed within three months of the decedent's 
death, it was not barred by the three-year 
statute of limitations for all contracts set 
forth in § 15-1-29. McKellar's Estate v. 
Brown, 404 So. 2d 550 (Miss. 1981). 



Probated claim maturing before dece- 
dent's death barred, notwithstanding pro- 
bate, by failure to sue thereon within four 
years and six months. Rogers v. 
Rosenstock, 117 Miss. 144, 77 So. 958 
(1918). 

Presentation, probating, and register- 
ing claim stops running of general statute 
of limitations. Duffy v. Kilroe, 116 Miss. 7, 
76 So. 681 (1917). 

Claim for medical services during de- 
ceased's last illness not barred until after 
4 years and 6 months. Hardenstein v. 
Brien, 96 Miss. 493, 50 So. 979 (1910). 



169 



§ 91-7-155 Trusts and Estates 

RESEARCH REFERENCES 

ALR. What constitutes rejection of Am Jur. 31 Am. Jur. 2d, Executors and 
claim against estate to commence running Administrators §§ 1188, 1190, 1194. 
of statute of limitations applicable to re- 
jected claims. 36 A.L.R.4th 684. 

§ 91-7-155. Executor to pay probated, registered debts. 

It shall be the duty of an executor or administrator to speedily pay the 
debts due by the estate out of the assets, if the estate be solvent; but he shall 
not pay any claim against the deceased unless the same has been probated, 
allowed, and registered. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (90); 1857, ch. 60, art. 81; 
1871, §§ 1135, 1137; 1880, §§ 2026, 2027; 1892, § 1931; Laws, 1906, § 2105; 
Hemingway's 1917, § 1773; Laws, 1930, § 1674; Laws, 1942, § 571. 

Cross References — Duty of legal representative of public officer who dies having 
public money in his hands to pay over the same, see § 25-1-67. 

Payment of debts from escheated property, see §§ 89-11-17, 89-11-19. 

Duty of administrator with the will annexed in regard to the payment of debts, see 
§ 91-7-47. 

Directions of will regarding payment of debts, see § 91-7-49. 

Payment of debts by temporary administrator, see § 91-7-57. 

Payment of debts prior to adjudication of insolvency of estate, see § 91-7-269. 

JUDICIAL DECISIONS 

1. In general. not probated within six-month period af- 

Executrix would be surcharged for the ter publication of first notice by executor 

amount the testamentary trust property to creditors of estate, as such expendi- 

was damaged or put in jeopardy due to her tures are without authority of law unless 

mortgaging of estate's unencumbered real claims had been probated. Oberst v. 

property as security for debt incurred by Mullens, 43 So. 2d 560 (Miss. 1949). 

testator which was never probated. Har- The court has no power upon ex parte 

per v. Harper, 491 So. 2d 189 (Miss. 1986). petitions to authorize a payment of an 

Executrix was properly surcharged for unprobated debt or claim. Townsend v. 

payment of decedent's debts which had Beavers, 185 Miss. 312, 188 So. 1 (1939), 

not been probated, registered, or allowed, error overruled, 185 Miss. 327, 189 So. 90 

Harper v. Harper, 491 So. 2d 189 (Miss. (1939). 

1986). Administrator may pay claim for fu- 

This provision, being in derogation of neral expenses without probate. Gaulden 

the common-law rule, must be construed v. Ramsey, 123 Miss. 1, 85 So. 109 (1920). 

strictly. Riegelhaupt v. Ostroffsky, 237 Administrator without authority to pay 

Miss. 521, 115 So. 2d 331 (1959). claim not presented according to law. A. 

Executor should be surcharged in his Lehman & Co. v. Powe, 95 Miss. 446, 49 

final account with sum which he paid out So. 622 (1909). 

of funds of estate in settlement of just Setoff cannot be based on unprobated 

claims against estate which were required claim. Cohn v. Carter, 92 Miss. 627, 46 So. 

by law to be duly probated but which were 60 (1908). 



170 



Executors and Administrators 



§ 91-7-157 



RESEARCH REFERENCES 



ALR. Necessity of presenting spouse's 
claim under separation agreement to per- 
sonal representative of other spouse's es- 
tate. 58 A.L.R.2d 1283. 

Power and responsibility of executor or 
administrator to compromise claim 
against estate. 72 A.L.R.2d 243. 



Garnishment against executor or ad- 
ministrator by creditor of estate. 60 
A.L.R.3d 1301. 

Appealability of probate orders allowing 
or disallowing claims against estate. 84 
A.L.R.4th 269. 



§ 91-7-157. Executor to pay taxes. 

An executor or administrator shall pay all taxes that may be due on real 
and personal property belonging to the estate. 

SOURCES: Codes, 1892, § 1930; Laws, 1906, § 2104; Hemingway's 1917, § 1772; 
Laws, 1930, § 1675; Laws, 1942, § 572. 

Cross References — Income tax returns by fiduciaries, see § 27-7-35. 

Time for filing income tax return, see § 27-7-41. 

Tax upon settlement of fiduciary's account, see § 27-7-69. 

Inheritance tax generally, see §§ 27-9-1 et seq. 

Inheritance tax returns by executor, see § 27-9-23. 

When inheritance tax shall be due, see § 27-9-27. 

Lien for payment of estate taxes, see § 27-9-35. 

Executor's personal liability for estate taxes, see § 27-9-37. 

Tax upon settlement of executor's account, see § 27-9-41. 

Payment of estate taxes as prerequisite to approval of final account, see § 27-9-41. 

Enforcement of payment of taxes by tax collector, see § 27-41-11. 

JUDICIAL DECISIONS 



1. In general. 

Executrix was properly surcharged with 
amount of interest and penalties paid 
from decedent's estate funds for the late 
filing of federal and state estate tax re- 
turns. Harper v. Harper, 491 So. 2d 189 
(Miss. 1986). 

Unpaid taxes did not constitute valid 
defense to executrix's suit for specific per- 
formance against purchaser of realty sold 
under power of sale in will, since executrix 
has duty under this section [Code 1942, 
§ 572] to pay the taxes and such obliga- 
tion can be readily accounted for under 
the decree for specific performance. Davis 
v. Sturdivant, 197 Miss. 139, 19 So. 2d 499 
(1944). 

In compliance with decree for specific 
performance of realty sold by executrix 
under power of sale in will, purchaser is 
entitled to deed free from lien for unpaid 
taxes. Davis v. Sturdivant, 197 Miss. 139, 
19 So. 2d 499 (1944). 



Decision of umpire designated by will to 
settle disputes between executors, deter- 
mining that taxes on real estate devised 
subject to the mortgage debt thereon were 
not payable by the estate but by the devi- 
see, was not binding on the devisee, where 
the provision for action by such umpire 
was designed to bring about harmony be- 
tween the executors, and such decision 
was contrary to the manifest intention of 
the testatrix. Eatherly v. Winn, 185 Miss. 
742, 189 So. 99 (1939). 

Where the testatrix provided for the 
payment by her executors of all her just 
and legal debts, taxes on real estate accru- 
ing and due for the year prior to her death, 
were to be paid by her executors and were 
not chargeable against the devisee of such 
real estate devised to him subject to one- 
half of the mortgage debt thereon. 
Eatherly v. Winn, 185 Miss. 742, 189 So. 
99 (1939). 

Administrator was properly permitted 



171 



§ 91-7-159 Trusts and Estates 

to take credit for payment of taxes on Administrator on accounting was enti- 
realty and merchandise. Crescent Furn. & tied to allowance for taxes paid on land of 
Mattress Co. v. Morgan, 178 Miss. 824, the estate. Davis v. Blumenberg, 107 Miss. 
173 So. 290 (1937). 432, 65 So. 503 (1914). 

Legatees and distributees not required 
to pay taxes. Tonnar v. Wade, 153 Miss. 
722, 121 So. 156 (1929). 

RESEARCH REFERENCES 

ALR. Liability of executor, administra- estate because of overpaying or unneces- 

tor, trustee, or his counsel, for interest, sarily paying tax. 55 A.L.R.3d 785. 

penalty, or extra taxes assessed against Am Jur. 31 Am. Jur. 2d, Executors and 

estate because of tax law violations. 47 Administrators §§ 581, 582. 

A.L.R.3d 507. C JS. 34 C. J.S., Executors and Adminis- 

Liability of executor or administrator to trators § 409. 

§ 91-7-159. Agreement with commissioner of internal reve- 
nue to exercise discretion in distributing assets of estate or 
trust. 

The executor, trustee, or other fiduciary having discretionary powers 
under a last will and testament or transfer in trust shall be authorized to enter 
into agreements with the commissioner of internal revenue of the United 
States of America and other taxing authorities to exercise the fiduciary's 
discretion so that the assets to be distributed in satisfaction of a bequest or 
transfer in trust will be selected in such a manner that cash and other 
properties distributed will have an aggregate fair market value representative 
of the pecuniary legatee's or transferee's proportionate share of the apprecia- 
tion or depreciation in value to the date, or dates, of distribution of all property 
then available for distribution in satisfaction of such bequest or transfer. It is 
the purpose of this section to authorize such fiduciary to enter into any 
agreement that may be necessary or advisable in order to secure for federal 
estate tax purposes the maximum marital deduction available under the 
Internal Revenue Laws of the United States of America, and to do and perform 
all acts incident to such purpose. 

SOURCES: Codes, 1942, § 572.5; Laws, 1964, ch. 295, eff from and after passage 
(approved June 6, 1964). 

§ 91-7-161. Creditors whose claims are not due must accept 
payment. 

The executor or administrator may pay any debt, duly probated, allowed 
and registered, which is not due. After ninety (90) days from the grant of 
letters, the creditor shall accept payment thereof and give a full discharge 
therefor, upon the payment or tender to him of an amount equal to what the 
debt would have been had it been made payable on the day the payment or 
tender is made. 

172 



Executors and Administrators § 91-7-163 

SOURCES: Codes, 1892, § 1938; Laws, 1906, § 2112; Hemingway's 1917, § 1780; 
Laws, 1930, § 1676; Laws, 1942, § 573; Laws, 1975, ch. 373, § 6, eff from and 
after January 1, 1976. 

JUDICIAL DECISIONS 

1. In general. bound her divorced husband and his heirs, 

This section [Code 1942, § 573] is indie- executors, and assigns even after his 

ative of a public policy favoring the early death, future and unmatured payments 

closing of estates of decedents as against under the agreement constituted a valid 

delays on account of unmatured claims, claim against the deceased husband's es- 

Deposit Guar. Nat'l Bank v. Kennington, tate, which this section [Code 1942, 

204 So. 2d 444 (Miss. 1967), corrected, 206 § 573] and the principles of equity re- 

So. 2d 337 (Miss. 1968). quired to be commuted to a lump sum 

Where a marital settlement agreement equal to its fair cash value. Deposit Guar, 

provided for monthly payments to the Nat'l Bank v. Kennington, 204 So. 2d 444 

divorced wife throughout her lifetime or (Miss. 1967), corrected, 206 So. 2d 337 

until she remarried, and the agreement (Miss. 1968). 

RESEARCH REFERENCES 

ALR. Power and responsibility of exec- 
utor or administrator to compromise 
claim against estate. 72 A.L.R.2d 243. 

§ 91-7-163. Claim of executor or administrator to be treated 
same as other claims. 

An executor or administrator shall not be allowed to retain any part of the 
assets in payment of his own claim against the deceased, unless the same be 
probated and registered as other claims and passed by the court. Every such 
claim shall stand upon an equal footing with other claims of the same nature. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (108); 1857, ch. 60, art. 85; 
1871, § 1143; 1880, § 2030; 1892, § 1935; Laws, 1906, § 2109; Hemingway's 
1917, § 1777; Laws, 1930, § 1677; Laws, 1942, § 574. 

Cross References — Disposal of debt owing from executor or administrator to 
deceased, see § 91-7-101. 

JUDICIAL DECISIONS 

1. In general. Administrator, whose individual claims 

Where testatrix, after executing will were barred because not timely filed, 

devising her right, title and interest in could not have claims for items accruing 

land gave deed of trust to executor cover- before decedent's death allowed under 

ing same land and clothed him with full guise of accounting. McDowell v. Minor, 

discretion, executor was entitled to stand 169 Miss. 339, 142 So. 491 (1932). 

on his security and not probate claim. Where administrator did not file his 

Howell v. Ott, 182 Miss. 252, 180 So. 52 individual claim within six months after 

(1938), error overruled, 182 Miss. 286, 181 notice to creditors should have been given, 

So. 740 (1938). probate of claim was nullity. McDowell 

173 



91-7-165 



Trusts and Estates 



v. Minor, 158 Miss. 360, 130 So. 484 
(1930). 

Claim of administrator against estate 
for individual debt not barred by limita- 



tions where duly probated and not barred 
at time of appointment. Oliver v. Smith, 
94 Miss. 879, 49 So. 1 (1909). 



RESEARCH REFERENCES 

ALR. Appealability of probate orders 
allowing or disallowing claims against es- 
tate. 84 A.L.R.4th 269. 

§ 91-7-165. Claims may be contested. 

The executor or administrator, legatee, heir, or any creditor may contest a 
claim presented against the estate. The court or clerk may refer the same to 
auditors, who shall hear and reduce to writing the evidence on both sides, if 
any be offered, and report their findings with the evidence to the court. 
Thereupon the court may allow or disallow the claim, but such proceeding shall 
not be had without notice to the claimant. 

SOURCES: Codes, 1857, ch. 60, art. 84; 1871, § 1142; 1880, § 2029; 1892, § 1934; 
Laws, 1906, § 2108; Hemingway's 1917, § 1776; Laws, 1930, § 1678; Laws, 
1942, § 575. 

JUDICIAL DECISIONS 



1. Generally. 

2. Burden of proof of claims. 

3. Evidence. 

4. Decree. 

1. Generally. 

A former wife proved a valid claim 
against her former husband's estate for 
$30,600, where there was a prior court 
judgment finding that the husband was 
$600 in arrears in alimony payments, and 
their divorce decree required the husband 
to carry a $30,000 life insurance policy on 
his own life naming the wife as the policy's 
primary beneficiary after payment of then 
existing pledged debts, but the husband 
had let the policy lapse. Raspilair v. Estate 
of Raspilair, 583 So. 2d 970 (Miss. 1991). 

In order for a claimant to introduce 
evidence to support a claim against an 
estate for medical expenses upon contest, 
the claimant may proceed under § 41-9- 
119, but to do this, he or she must be 
allowed to go into court to present the bills 
incurred and to testify for what purpose 
they were incurred. Since a summary 
judgment, by its nature, disposes of a case 
before a trial is commenced, summary 



judgment practice under Rule 56, Miss. R. 
Civ. P. is inapplicable in contests of pro- 
bated claims because it is inconsistent 
with the statutory procedure which neces- 
sitates that a claimant enter court to 
introduce evidence in support of his or her 
claim and permits a personal representa- 
tive to rebut the claim. Thus, the proce- 
dure for summary judgment is not appli- 
cable to dispose of claims made under 
§ 91-7-149. Biloxi Regional Medical Ctr., 
Inc. v. Estate of Ross, 546 So. 2d 667 
(Miss. 1989). 

There is no conflict between § 91-7-165 
and the discovery rules and, therefore, in 
a proceeding to contest a claim probated 
against an estate, the estate had the right 
under Rules 26 and 33, Miss.R.Civ.P. to 
propound interrogatories and secure all 
relief appropriate for failure to answer. 
Biloxi Regional Medical Ctr., Inc. v. Estate 
of Ross, 546 So. 2d 667 (Miss. 1989). 

Time for taking appeal by administrator 
or executor unhappy with decree allowing 
contested claim runs from date of decree 
on claim, not from date of decree finally 
closing estate; efficient and orderly ad- 
ministration of estates and payment of all 



174 



Executors and Administrators 



§ 91-7-165 



just debts without unjustified delay com- 
pels this result. Braxton v. Johnson, 514 
So. 2d 1232, 84 A.L.R.4th 255 (Miss. 
1987). 

On filing of contest of probated claim, 
claimant need file no pleading in absence 
of demand or necessity for bill of particu- 
lars. Ellis v. Berry, 145 Miss. 652, 110 So. 
211 (1926). 

2. Burden of proof of claims. 

One filing claim for services rendered 
deceased has burden to establish by clear 
and convincing evidence that the services 
were rendered pursuant to an under- 
standing, express or implied. Wells v. 
Brooks, 199 Miss. 327, 24 So. 2d 533 
(1946). 

The burden of establishing a claim if 
contested, is upon the claimant although 
the claim has been admitted to probate by 
the clerk. Wooley v. Wooley, 194 Miss. 751, 
12 So. 2d 539 (1943). 

Where it appeared that in a hearing on 
contested claims against an estate, the 
administratrix proceeded first with her 
testimony, claimant's contention that she 
thereby assumed the burden of proof and 
adopted the legal effect of a probated 
claim announced in the chancellor's opin- 
ion, and that she was estopped to take a 
different position on appeal, was untena- 
ble in view of the effect and weight the 
chancellor erroneously attached to the 
mere fact that the claim had been admit- 
ted to probate. Wooley v. Wooley, 194 Miss. 
751, 12 So. 2d 539 (1943). 

3. Evidence. 

Where a claim meets certain minimum 
requirements, both the person asserting 
the claim and the personal representative, 
on a contest, have the right to introduce 
evidence to support their positions. Cen- 
tral Optical Merchandising Co. v. Lowe's 
Estate, 249 Miss. 61, 160 So. 2d 673 
(1964). 

Decision of chancellor that admission to 
probate of claims against an estate estab- 
lished a presumption of its correctness 



was erroneous as being a misconception of 
the effect of a probated claim, since a 
claim against an estate, although duly 
probated and registered, must be estab- 
lished by clear and reasonably positive 
evidence, if contested by the administra- 
trix. Wooley v. Wooley, 194 Miss. 751, 12 
So. 2d 539 (1943). 

A claim against the estate of a decedent, 
although duly probated and registered, 
must be established by clear and reason- 
ably positive evidence, if objected to by the 
administrator, or by any legatee, heir, or 
any creditor, and contested by such party 
in interest. Nicholson v. Dent, Robinson & 
Ward, 189 Miss. 658, 198 So. 552 (1940). 

Claim against testator's estate, which 
purported to be itemized account or state- 
ment of claim in writing, which charged 
estate with purchase of note on which 
there was a balance due, would be disal- 
lowed where evidence clearly disclosed 
that there was no sale of note by claimant 
to testator, but that testator agreed to 
collect note for claimant, pay certain 
amount on debt of testator's son to testa- 
tor and turn over balance to claimant, and 
that testator merely became claimant's 
agent or trustee for collection of note. 
First Columbus Nat'l Bank v. Holesapple- 
Dillman, 174 Miss. 234, 164 So. 232 
(1935). 

Under contract for services between 
claimant and intestate, at a fixed compen- 
sation, declarations of intestate to third 
person indicating willingness to pay 
claimant for services then being rendered, 
not sufficient to establish agreement to 
pay extra compensation therefor. Bell v. 
Oates, 97 Miss. 790, 53 So. 491 (1910). 

4. Decree. 

In contest of claim against decedent's 
estate, only decree allowing or disallowing 
claim can be rendered, and monetary 
judgment against administrator for sum 
for which claim is allowed, if allowed, 
would be erroneous. Trippe v. 
O'Cavanagh, 203 Miss. 537, 36 So. 2d 166 
(1948). 



RESEARCH REFERENCES 



ALR. Power and responsibility of exec- 
utor or administrator to compromise 
claim due estate. 72 A.L.R.2d 191. 



Power and responsibility of executor or 
administrator to compromise claim 
against estate. 72 A.L.R.2d 243. 



175 



§ 91-7-167 



Trusts and Estates 



Validity of nonclaim statute or rule pro- 
vision for notice by publication to claim- 
ants against estate — post- 1950 cases. 56 
A.L.R.4th 458. 



Appealability of probate orders allowing 
or disallowing claims against estate. 84 
A.L.R.4th 269. 



§ 91-7-167. Creditor having lien failing to present claim. 

A creditor of a decedent who has a lien of any kind on property of the 
decedent shall not be barred of his right to enforce the lien against the property 
by a failure to present his claim and have it probated and registered, but shall 
be barred of all claim to be satisfied out of the assets not affected by such lien. 
A person claiming to have a lien on any property of the decedent may be made 
a party to any proper proceeding by the executor or administrator or a creditor 
to test the validity of such claim to a lien, and to determine upon the right of 
such claim. This may be in a proceeding to sell property, which may be ordered 
to be sold free from such lien, or subject to it; and the decree may be made as 
to a sale and disposition of the proceeds of the sale of the property, as may be 
according to the rights of parties before the court. 

SOURCES: Codes, 1880, § 2031; 1892, § 1937; Laws, 1906, § 2111; Hemingway's 
1917, § 1779; Laws, 1930, § 1679; Laws, 1942, § 576. 

Cross References — Enforcement of lien by representative of lienor, see § 85-7-261. 
Renewal of lien by executors and administrators, see § 91-7-227. 

JUDICIAL DECISIONS 



1. In general. 

A vendor's election to probate and reg- 
ister a promissory note executed in con- 
junction with a deed of trust against the 
purchaser's estate, which was not pur- 
sued, was lost at the end of the 90 day 
limitation period of § 91-7-151; however, 
that section, as qualified by § 91-7-167, 
did not bar the vendor's election to pursue 
the trust or lien establishment against the 
specific real estate, which arose at the 
time the deed of trust was mistakenly 
cancelled by the bank. First Nat'l Bank v. 
Huff, 441 So. 2d 1317 (Miss. 1983). 

There payee failed to timely probate 
claim on note of deceased, and was barred 
from asserting claim on the note as an 
unsecured creditor, he was entitled to re- 
covery of the salvage value of the de- 
stroyed automobile which had been mort- 
gaged to secure the note. Mossier 
Acceptance Co. v. Moore, 218 Miss. 757, 67 
So. 2d 868 (1953). 

The widow and adopted daughter of an 
intestate were not necessary parties to a 
proceeding against the administratrix to 



foreclose a deed of trust on realty consti- 
tuting a part of the estate, where the 
estate had been declared insolvent, the 
realty was in the possession of the admin- 
istratrix, who was also the widow of the 
decedent but was made a party only as 
administratrix, and the daughter advised 
her regarding the foreclosure matters. 
Hubbard v. Massey, 192 Miss. 95, 4 So. 2d 
230 (1941), error overruled, 192 Miss. Ill, 
4 So. 2d 494 (1941). 

Where testatrix, after executing will 
devising her right, title and interest in 
land, gave deed of trust to executor cover- 
ing same land and clothed him with full 
discretion, executor was entitled to stand 
on his security and not probate claim. 
Howell v. Ott, 182 Miss. 252, 180 So. 52 
(1938), error overruled, 182 Miss. 286, 181 
So. 740 (1938). 

Lien of trust held to exist from misap- 
plication of funds, making probate of same 
unnecessary to enforce it as against all 
but bona fide purchaser. Sandy v. Crump, 
139 Miss. 163, 103 So. 804 (1925). 

An ex parte petition of an administrator 



176 



Executors and Administrators § 91-7-169 

erroneously stating that a lien exists on validity of a claim within the meaning of 

certain assets and asking permission to this section [Code 1942, § 576]. O'Brien 

apply the assets to the satisfaction of the Bros. v. Wilson, 86 Miss. 540, 38 So. 509 

alleged lien is not a proceeding to test the (1905). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 33 C.J.S., Executors and Adminis- 
Administrators §§ 585, 586. trators § 433. 

§ 91-7-169. Growing crop. 

The court or chancellor may, on the application of an executor or admin- 
istrator, decree the sale of the crop growing at the time of the death of the 
testator or intestate, upon such terms and in such manner as may be deemed 
best. If the interest of the estate would be promoted by the cultivation and 
completion of the crop, on application therefor by the executor or administra- 
tor, it shall be so ordered by the court or chancellor; and in such case the 
executor or administrator shall take charge of the farm and manage the same 
until the crop be completed and gathered, retaining for that purpose so much 
of the property thereon as may be necessary. The proceeds shall be assets in his 
hands, the necessary expenses being first deducted; and, in either case, the 
executor or administrator shall render a true account of the crop. In case of the 
sale of the growing crop, the purchaser thereof may at all reasonable times 
enter upon the lands to cultivate and gather the same. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (84); 1857, ch. 60, art. 96; 
1871, § 1156; 1880, § 2063; 1892, § 1882; Laws, 1906, § 2057; Hemingway's 
1917, § 1722; Laws, 1930, § 1680; Laws, 1942, § 577. 

Cross References — Treatment of growing crops in event of forfeiture under 
mortgage or deed of trust, see §§ 11-25-25, 11-25-115. 

Growing crop not subject to judgment lien, see § 11-7-199. 

Growing crop not subject to levy for execution or attachment, see § 13-3-137. 

JUDICIAL DECISIONS 

1. In general. Under this section [Code 1942, § 577], 

Crops growing on devised land at time crops remaining on the lands at the date 

of death of testatrix which are not needed of his death, whether gathered or still in 

by executor for payment of debts or cost of the field, and whether they are matured or 

administration of estate pass to devisee of not, are assets of decedent, whether tes- 

land rather than into estate for benefit of tate or intestate, and as such pass into the 

residuary legatees, where will devised hands of the personal representative for 

land and all trucks, farm implements, the payment of the debts and expenses of 

tractors and equipment thereon and di- administration. Gordon v. James, 86 Miss, 

rected that immediately after death of 719, 39 So. 18 (1905). 

devisor devisee should be vested with en- Crops remaining on land are assets of 

tire control over her part of property, estate passing to personal representative. 

Oberst v. Mullens, 43 So. 2d 560 (Miss. Gordon v. James, 86 Miss. 719, 39 So. 18 

1949). (1905). 

177 



§ 91-7-171 Trusts and Estates 

A contract by a farmer to obtain sup- the personal representative of the de- 
plies for making crops, under which he ceased owner. Dickey v. Wilkins, 17 So. 
mortgages his personalty and crops to 374 (Miss. 1895). 

secure payment, does not terminate with Debts incurred by the administrator in 

his death, but can be enforced by and cultivating the crop are privileged claims 

against his administrator, and such mort- thereon, and limited thereto. Emanuel v. 

gage secures advances made to an admin- Norcum, 8 Miss. (7 Howard) 150 (1849); 

istrator empowered to complete the crop. Hagan v. Barksdale, 44 Miss. 186 (1870); 

Cox v. Martin, 75 Miss. 229, 21 So. 611, 65 Farley, Jurey & Co. v. Hord, 45 Miss. 96 

Am. St. R. 604 (1897). (1871); Hardee v. Cheatham, 52 Miss. 41 

The proceeds of crops growing on ex- (1876) 
empted property are assets in the hands of 

RESEARCH REFERENCES 

Am Jur. 21A Am. Jur. 2d, Crops §§ 33, 
34. 

§ 91-7-171. Farm may be cultivated or rented. 

The court or chancellor, upon the application of executor or administrator, 
may allow him to cultivate or lease the farm or lands of the decedent for a 
period of not exceeding fifteen months from the grant of letters testamentary 
or of administration, if the interest of the estate, in the opinion of the court or 
chancellor, would be promoted thereby; or the court or chancellor, upon the 
application of the executor or administrator, may allow him to cultivate or 
lease the farm or lands of the decedent from year to year for the purpose of 
paying the debts of the decedent. 

SOURCES: Codes, 1892, § 1883; Laws, 1906, § 2058; Hemingway's 1917, § 1723; 
Laws, 1930, § 1681; Laws, 1942, § 578; Laws, 1918, ch. 125. 

Cross References — Lease of lands to pay debts, see § 91-7-225. 

JUDICIAL DECISIONS 

1. In general. purpose of paying his debts. Ashley v. 

An administrator, by consent of the Young, 79 Miss. 129, 29 So. 822 (1901). 
heirs, may lease decedent's lands for the 

§ 91-7-173. Executor or administrator may continue business 
for limited time. 

The chancery court or the chancellor in vacation shall have the power to 
authorize the executor or administrator of a decedent, when not contrary to the 
provisions of a will, to continue as a going concern for a period of not exceeding 
three (3) years after the grant of letters, the business in which the decedent 
was engaged at the time of his death and, where such business is a mercantile 
or other business of like nature, to allow the purchase of goods in small 
quantities necessary to replenish the stock and promote the sale thereof, and 
to permit the sale of the stock of goods at retail in the regular course of 

178 



Executors and Administrators 



§ 91-7-175 



business. Said stock of goods, however, shall not be sold at less than cost 
thereof, except by a previous order of the court or chancellor. 

SOURCES: Codes, 1930, § 1682; Laws, 1942, § 579; Laws, 1926, ch. 142; Laws, 
1964, ch. 298; Laws, 1966, ch. 323, § 1, eff from and after passage (approved 
February 8, 1966). 

Cross References — Issuance of temporary license to representative of deceased 
insurance agent, see § 83-17-213. 

Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

JUDICIAL DECISIONS 



1. In general. 

Surcharge upon executrix based upon 
her per se failure to secure court authority 
to operate a closely held corporation, 
which sustained losses both before and 
after testator's death, was not proper 
where the estate owned only stock in the 
corporation, not the business itself; fur- 
ther the proof failed to show that losses 
were caused by the failure of the executrix 
to act prudently in the administration of 
the estate. Harper v. Harper, 491 So. 2d 
189 (Miss. 1986). 

The management of a corporation is 
vested in its board of directors and not the 
stockholders. Harper v. Harper, 491 So. 2d 
189 (Miss. 1986). 

Court authority is not per se necessary 
to authorize an executrix with will an- 
nexed to exercise the estate's stock voting 
rights in a closely held corporation. Har- 
per v. Harper, 491 So. 2d 189 (Miss. 1986). 

Mississippi Code § 91-7-173 refers to 
unincorporated businesses and not incor- 
porated ones in which the decedent owns a 



stock interest, even if it is a controlling 
stock interest. Harper v. Harper, 491 So. 
2d 189 (Miss. 1986). 

Chancery court has power to authorize 
an executor to continue the business of the 
testator. Barry v. Barry, 198 Miss. 677, 21 
So. 2d 922, 161 A.L.R. 864 (1945). 

Administrator held unauthorized to op- 
erate intestate's business without an or- 
der of court being filed with clerk, which 
order was not effective until it reached 
hands of clerk. Crescent Furn. & Mattress 
Co. v. Morgan, 178 Miss. 824, 173 So. 290 
(1937). 

Administrator was properly allowed 
sums for purchase of new goods and sup- 
plies, clerks' salaries and other expenses 
in operating intestate's business notwith- 
standing order of court had not been ob- 
tained where master found that during 
period business was so operated nothing 
was lost to estate. Crescent Furn. & Mat- 
tress Co. v. Morgan, 178 Miss. 824, 173 So. 
290 (1937). 



RESEARCH REFERENCES 



ALR. Liability of personal representa- 
tive for losses incurred in carrying on, 
without testamentary authorization, de- 
cedent's nonpartnership mercantile or 
manufacturing business. 58 A.L.R.2d 365. 

Preference or priority of claims arising 
out of continuation of decedent's business 



by personal representative. 83 A.L.R.2d 
1406. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 525, 527, 533. 

CJS. 33 C.J.S., Executors and Adminis- 
trators §§ 212 et seq. 



§ 91-7-175. Sale of perishable property. 

The court or clerk may order the sale of perishable property on such notice 
as may be prescribed, whether required for the payment of debts or not. 



179 



§ 91-7-177 Trusts and Estates 

SOURCES: Codes, 1857, ch. 60, art. 87; 1871, § 1145; 1880, § 2034; 1892, § 1885; 
Laws, 1906, § 2060; Hemingway's 1917, § 1725; Laws, 1930, § 1683; Laws, 
1942, § 580. 

Cross References — Sale of perishable goods levied on generally, see § 13-3-167. 

§ 91-7-177. Private sale of personal property. 

The court, or the chancellor in vacation, may authorize the executor or 
administrator to sell personal property at a private sale. 

SOURCES: Codes, 1857, ch. 60, art. 87; 1871, § 1146; 1880, § 2035; 1892, § 1886; 
Laws, 1906, § 2061; Hemingway's 1917, § 1726; Laws, 1930, § 1684; Laws, 
1942, § 581. 

Cross References — Authority of chancellor or chancery court to order private 
sales, see § 11-5-117. 

JUDICIAL DECISIONS 

1. In general. prior court order the administrator runs 

This section [Code 1942, § 581] allows the risk of the court's subsequent disap- 

private sale of personal property by an proval. Dabbs v. Fisher., 27 So. 2d 342 

administrator for less than its appraised (Miss. 1946). 
value, but in making such sale without a 

§ 91-7-179. Sale for appraised value without order. 

The executor or administrator, without an order therefor, may sell for 
cash, either at public or private sale, perishable goods or chattels or livestock 
of the decedent, whether it be necessary for the payment of debts and expenses 
of administration or not. He may likewise sell any personal property of the 
decedent necessary for the payment of the debts and expenses, but he shall 
realize therefor at least the appraised value of such property. 

SOURCES: Codes, 1880, § 2038; 1892, § 1888; Laws, 1906, § 2063; Hemingway's 
1917, § 1728; Laws, 1930, § 1685; Laws, 1942, § 582. 

§ 91-7-181. Certain property may be sold without being 
present. 

An executor or administrator may sell the interest of his testator or 
intestate in a ship, vessel, steamboat, other water craft, or other property 
which he cannot produce, without the same being present at the time and place 
of sale. 

SOURCES: Codes, 1857, ch. 60, art. 87; 1871, § 1146; 1880, § 2036; 1892, § 1887; 
Laws, 1906, § 2062; Hemingway's 1917, § 1727; Laws, 1930, § 1686; Laws, 
1942, § 583. 

§ 91-7-183. Public sale of personal property. 

If it be necessary to sell personal property for the payment of debts, or in 
case there are no debts and it is to the best interest of all parties concerned, the 

180 



Executors and Administrators § 91-7-183 

executor or administrator shall file a petition for an order of sale in which the 
reasons for the same shall be made known. In case there are no debts, five days' 
notice to the parties in interest who have not joined in said petition shall be 
given of the time and place of hearing said petition, or publication made, as 
provided by law, for nonresident or unknown defendants in chancery If the 
court or chancellor in vacation be satisfied that a sale is necessary or proper, an 
order may be made for the sale of part or the whole of the personal estate; and 
if a part be ordered sold, the court or chancellor in vacation in selecting such 
part shall have in view the best interest of the creditors and distributees. The 
executor or administrator shall advertise in three or more public places in the 
county ten days before the sale, and shall sell the property designated in the 
order at public sale to the highest bidder, either for cash or credit, as the order 
of sale may direct. The executor or administrator shall not become the 
purchaser of any property which he may sell, either directly or indirectly, nor 
shall any executor or administrator take the estate or any part thereof at the 
appraised value. 

SOURCES: Codes, 1857, ch. 60. art. 86; 1871, § 1144; 1880, § 2032; 1892, § 1884; 
Laws, 1906, § 2059; Hemingway's 1917, § 1724; Laws, 1930, § 1687; Laws, 
1942, § 584. 

Cross References — Sales under decree by chancery court, see §§ 11-5-93 et seq. 
Where property under execution or other process shall be sold, see §§ 13-3-161 et seq. 

JUDICIAL DECISIONS 

1. In general. sufficiently advertised is not well taken 

Sale of decedent's property without le- where publication containing elements of 

gal citation to beneficiaries in will is valid sale was made in three newspapers for 

where will relieves executor from legal period of approximately a week, prospec- 

citation to interested parties. Walker v. tive bidders were notified by telephone 

First Nat'l Bank, 204 Miss. 696, 38 So. 2d and letters, many people inspected prop- 

98 (1948). erty, successful bid exceeded appraised 

Objection to executor's sale of wholesale value, and objectors produced no proof 

grocery business on ground that it was not more than possibility or speculation that 

sufficiently advertised is not well taken had sale been postponed for ten or twenty 

when, under the terms of will under which days there would have been higher, or 

sale was made, no public notice of pro- more numerous, bids on the later date, 

posed sale was required to be given. Walker v. First Nat'l Bank, 204 Miss. 696, 

Walker v. First Nat'l Bank, 204 Miss. 696, 3 g g 2 d 98 (1948) 
38 So. 2d 98 (1948). 

Objection to executor's sale of wholesale 
grocery business on ground that it was not 

RESEARCH REFERENCES 

ALR. Right of an administrator with Power of sale conferred on executor by 

the will annexed, or trustee other than the testator as authorizing private sale. 11 

person named in the will as such, to A.L.R.2d 955. 

execute power of sale conferred by will. 9 Am Jur. 31 Am. Jur. 2d, Executors and 

A.L.R.2d 1324. Administrators §§ 725, 728. 

181 



§ 91-7-185 Trusts and Estates 

10 Am. Jur. PI & Pr Forms (Rev), Ex- CJS. 34 C.J.S., Executors and Adminis- 
ecutors and Administrators, Forms 741 et trators §§ 584 et seq. 
seq. (sale of personal property). 

§ 91-7-185. Report of sale and proceedings. 

Whenever personal property shall be sold by an executor or administrator, 
he shall make report thereof in writing to the next term of the court, stating 
the time and place of sale, the name of the purchaser, and the amount of the 
purchase-money, and shall satisfy the court that the directions prescribed in 
the order for sale, if the sale be under an order, were followed. Thereupon the 
court shall confirm the sale, unless cause be shown to the contrary. If such sale 
be not reported at the next term, the court may compel the making of such 
report at a subsequent term, and may confirm or set aside the same. Any 
executor or administrator failing to make report in due time may be fined for 
a contempt, not exceeding one hundred dollars. 

SOURCES: Codes, 1857, ch. 60, art. 87; 1871, § 1147; 1880, § 2037; 1892, § 1889; 
Laws, 1906, § 2064; Hemingway's 1917, § 1729; Laws, 1930, § 1688; Laws, 
1942, § 585. 

JUDICIAL DECISIONS 

1. In general. a higher price could have been obtained 

Supreme court will not say that confir- for the assets of the estate nor in what 

mation of sale of wholesale grocery busi- respect beneficiaries in will suffered any 

ness by executor, acting under authority loss. Walker v. First Nat'l Bank, 204 Miss, 

of will, was manifestly wrong, when it is 696, 38 So. 2d 98 (1948). 
not pointed out by what means or manner 

§ 91-7-187. Sale of land in preference to personalty. 

When the estate of any deceased person consists of real and personal 
property and it shall be necessary to sell a portion thereof, the chancery court, 
on petition of the executor, administrator, legatees or distributees, being 
satisfied that it would be to the interest of the distributees or legatees, may 
decree a sale of the real estate in preference to the personal estate. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 8 (2); 1857, ch. 60, art. 93; 1871, 
§ 1153; 1880, § 2042; 1892, § 1900; Laws, 1906, § 2075; Hemingway's 1917, 
§ 1742; Laws, 1930, § 1689; Laws, 1942, § 586. 

JUDICIAL DECISIONS 

1. In general. for sale of real estate by administrator of 

Sale of real estate made by heir was in estate established in §§ 91-7-187 and 91- 

his individual capacity as owner of prop- 7-191 had not been shown to exist. Estate 

erty, as sole surviving heir at law of his of Manscoe v. Simmons, 512 So. 2d 682 

father, and suit for commission by real (Miss. 1987). 

estate agent, who alleged she procured Sale under execution of land of decedent 

purchaser for home, could not be main- pursuant to decree recovered against ad- 

tained against estate, because conditions ministrator held void for noncompliance 

182 



Executors and Administrators § 91-7-191 

with statutes regulating proceedings for property by the personal representative 

sale of decedent's land for payment of for the payment of debts, it is the legal 

debts. Dolan v. Tate, 161 Miss. 615, 137 duty of such representative to pay the 

So. 515 (1931). taxes on lands for the purpose of preserv- 

Heirs of decedent suing to remove, as ing them for the benefit of creditors, 

cloud on title, claim asserted through pur- Tonnar v. Wade, 153 Miss. 722, 121 So. 

chase at execution sale under judgment 156 (1929). 

against ancestor's representative, need This section [Code 1942, § 586] applies 

not offer to pay judgment or amount for whether the property is devised by will or 

which land was sold. Dolan v. Tate, 161 descends by operation of law. Brickell v. 

Miss. 615, 137 So. 515 (1931). Lightcap, 115 Miss. 417, 76 So. 489 (1917), 

Under this section [Code 1942, § 586] overruled on other grounds, Harper v. 

and other sections providing for the sale of Harper, 491 So. 2d 189 (Miss. 1986). 

RESEARCH REFERENCES 

ALR. Right of an administrator with Am Jur. 31 Am. Jur. 2d, Executors and 
the will annexed, or trustee other than the Administrators §§ 725, 730 et seq. 
person named in the will as such, to 
execute power of sale conferred by will. 9 
A.L.R.2d 1324. 

§ 91-7-189. Sale to pay the purchase-money of land. 

If a person purchase land and die before paying therefor, the court may 
order the sale of personal property for the payment of the debt due for the land. 
If the personal property will not be sufficient, if sold, to pay the debt, or if it be 
advisable that the land be sold in preference to personal property to make 
payment therefor, the court may order the sale of such land on such terms as 
may be proper. In such case the vendor of the deceased and his assignee of the 
debt, if any, shall be made defendants to the petition for the sale of the land. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (96); 1857, ch. 60, art. 138; 
1871, § 1196; 1880, § 2043; 1892, § 1901; Laws, 1906, § 2076; Hemingway's 
1917, § 1743; Laws, 1930, § 1690; Laws, 1942, § 587. 

Cross References — Preference of purchase money mortgage, see § 89-1-45. 

JUDICIAL DECISIONS 

1. In general. tors at large, nor is the fund subject to pro 

A sale made under this section [Code rata distribution. Wells v. Smith, 44 Miss. 
1942, § 587] is not for the benefit of credi- 296 (1870). 

§ 91-7-191. Sale of land upon insufficiency of personalty. 

When an executor or administrator shall discover that the personal 
property will not be sufficient to pay the debts and expenses, he may file a 
petition in the chancery court for the sale of the land of the deceased, or so 
much of it as may be necessary, and exhibit to the court a true account of the 
personal estate and debts due from the deceased, and the expenses and a 
description of the land to be sold. 

183 



§ 91-7-193 



Trusts and Estates 



SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 88; 
1871, § 1148; 1880, § 2039; 1892, § 1893; Laws, 1906, § 2068; Hemingway's 
1917, § 1735; Laws, 1930, § 1691; Laws, 1942, § 588. 

Cross References — When exempt property shall be liable for debts, see § 91-1-21. 

JUDICIAL DECISIONS 



1. In general. 

Sale of real estate made by heir was in 
his individual capacity as owner of prop- 
erty, as sole surviving heir at law of his 
father, and suit for commission by real 
estate agent, who alleged she procured 
purchaser for home, could not be main- 
tained against estate, because conditions 
for sale of real estate by administrator of 
estate established in §§ 91-7-187 and 91- 
7-191 had not been shown to exist. Estate 
of Manscoe v. Simmons, 512 So. 2d 682 
(Miss. 1987). 

A will manifests the testator's intention 
that the property transferred to his wife 
be free of estate taxes where "Item IV" 
exempts from the payment of estate taxes 
and administration costs those bequests 
made earlier in the will to his wife and 
"Item III" specifically states that his wife 
is to receive $4,800 a year "free of any 
debts" and therefore this property cannot 
bear the burden of estate taxes. Waldrup 
v. United States, 499 F. Supp. 820 (N.D. 
Miss. 1980). 

In the absence of a direction to the 
contrary by the testator, estate taxes must 
be paid first from personal property not 
specifically devised by will, secondly from 
other personalty of the estate, and thirdly, 
if necessary, from the real estate. Stovall 
v. Stovall, 360 So. 2d 679 (Miss. 1978). 

No court other than chancery court in 
which letters of administration have been 



granted has jurisdiction over petition for 
sale of decedent's nonexempt lands for 
payment of decedent's debts. Trippe v. 
O'Cavanagh, 203 Miss. 537, 36 So. 2d 166 
(1948). 

Petition for sale of nonexempt lands of 
estate for payment of decedent's debts 
when personalty is insufficient should be 
filed by executor or administrator, but 
may be filed by creditor of decedent whose 
claim against estate is registered. Trippe 
v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 
166 (1948). 

Petition for sale of decedent's lands in 
one county to pay debts may be heard by 
chancellor in second county within same 
chancery district. Whitley v. Towle, 163 
Miss. 418, 141 So. 571 (1932). 

Under this section [Code 1942, § 588] 
and Code 1942, § 539, the personal estate 
must be exhausted before the lands may 
be resorted to for the payment of debts, 
unless a contrary intent be manifested in 
the will of the decedent. Gordon v. James, 
86 Miss. 719, 39 So. 18 (1905). 

Personal estate must be exhausted be- 
fore resort to land whether decedent died 
testate or intestate, unless contrary intent 
manifested by will, and specific bequest 
must be exhausted before specific devises 
can be compelled to contribute. Gordon v. 
James, 86 Miss. 719, 39 So. 18 (1905). 



RESEARCH REFERENCES 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 725, 730 et seq. 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 586 et seq. 



Law Reviews. 1978 Mississippi Su- 
preme Court Review: Miscellaneous. 50 
Miss. L. J. 165, March, 1979. 



§ 91-7-193. Waste of personal estate no bar. 

The fact that the insufficiency of the personal estate arose from the waste 
of the executor or administrator shall not be a defense to an application to sell 



184 



Executors and Administrators 



91-7-195 



land to pay debts, if such executor or administrator and sureties on his bond as 
such, if any, are insolvent or nonresidents of this state. 

SOURCES: Codes, 1880, § 2041; 1892, § 1899; Laws, 1906, § 2074; Hemingway's 
1917, § 1741; Laws, 1930, § 1692; Laws, 1942, § 589. 

§ 91-7-195. Creditors may apply for sale of property. 

Any creditor of the decedent whose claim against the estate is registered 
shall have the right to file a petition, as the executor or administrator may, for 
the sale of land or personal property of the decedent for the payment of debts. 
The court shall hear and decide upon such petition, and decree as if the 
application had been made by the executor or administrator, and may order the 
executor or administrator to make the sale. 

SOURCES: Codes, 1880, § 2047; 1892, § 1895; Laws, 1906, § 2070; Hemingway's 
1917, § 1737; Laws, 1930, § 1693; Laws, 1942, § 590. 

JUDICIAL DECISIONS 



1. In general. 

In a suit by a devisee to remove and 
cancel clouds on her title to an undivided 
Vz interest in minerals in land which was 
sold at an execution sale, the 2-year stat- 
ute of limitations on actions to recover 
property sold by an order of the chancery 
court [Code 1972, § 15-1-37] was inappli- 
cable since "order of a chancery court" 
contemplates an order entered after com- 
pliance with Code 1972, § 91-7-195, pro- 
viding that a petition be filed with the 
court by creditors of a decedent having 
registered claims against an estate for the 
sale of land or personal property for pay- 
ment of debts, and Code 1972, § 91-7-197, 
providing that all interested parties shall 
be cited by summons or publication spec- 
ifying the time and place of the hearing on 
the petition. Simmons v. Abney, 292 So. 2d 
168 (Miss. 1974). 

Petition for sale of nonexempt lands of 
estate for payment of decedent's debts 
when personalty is insufficient should be 
filed by executor or administrator, but 
may be filed by creditor of decedent whose 
claim against estate is registered. Trippe 
v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 
166 (1948). 

No court other than chancery court in 
which letters of administration have been 
granted has jurisdiction over petition for 
sale of decedent's nonexempt lands for 



payment of decedent's debts. Trippe v. 
O'Cavanagh, 203 Miss. 537, 36 So. 2d 166 
(1948). 

Sale under execution of land of decedent 
pursuant to decree recovered against ad- 
ministrator held void for noncompliance 
with statutes regulating proceedings for 
sale of decedent's land for payment of 
debts. Dolan v. Tate, 161 Miss. 615, 137 
So. 515 (1931). 

Heirs of decedent suing to remove, as 
cloud on title, claim asserted through pur- 
chase at execution sale under judgment 
against ancestor's representative, need 
not offer to pay judgment or amount for 
which land was sold. Dolan v. Tate, 161 
Miss. 615, 137 So. 515 (1931). 

Creditor who had properly registered 
claim may file bill in chancery for sale of 
lands of estate to pay debts. Halliburton v. 
Crichton, 147 Miss. 621, 111 So. 743 
(1927). 

This section [Code 1942, § 590] autho- 
rizes a petition by a creditor only when his 
claim is properly registered, after being 
probated and allowed. Cheairs v. Cheairs, 
81 Miss. 662, 33 So. 414 (1903). 

Where the probate fails to conform to 
the requirements of Code 1942, § 568, a 
creditor cannot file a petition to sell land 
or personalty. Cheairs v. Cheairs, 81 Miss. 
662, 33 So. 414 (1903). 



185 



§ 91-7-197 



Trusts and Estates 



RESEARCH REFERENCES 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators § 797. 



CJS. 34 C.J.S., Executors and Adminis- 
trators § 593. 



§ 91-7-197. Interested parties to be cited upon petition to sell 
property. 

When a petition shall be filed to sell or lease land to pay debts or otherwise 
affecting the real estate of a deceased person, all parties interested shall be 
cited by summons or publication, which shall specify the time and place of 
hearing the petition. If the petition be filed by a creditor or by a purchaser to 
correct a mistake in the description of the land, the executor or administrator 
shall be cited. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 117; 
1871, § 1148; 1880, §§ 2039, 2042, 2043, 2047; 1892, § 1904; Laws, 1906, 
§ 2079; Hemingway's 1917, § 1746; Laws, 1930, § 1694; Laws, 1942, § 591. 

JUDICIAL DECISIONS 



1. In general. 

Beneficiaries under residual testamen- 
tary trusts are "parties interested" so as to 
be entitled to the notice required under 
Mississippi Code § 91-7-197; Brickell v. 
Lightcap (1917) 115 Miss 417, 76 So 489 is 
thus overruled; however, this new rule of 
law will apply prospectively only. Harper 
v. Harper, 491 So. 2d 189 (Miss. 1986). 

Petitioner, who had entered into a con- 
tract whereby an executrix agreed to sell 
and convey certain property to petitioner 
after the probate of a will, was not a 
"party interested" within the meaning of 
§ 91-7-197, but was rather one with a 
contingent interest, and therefore lacked 
standing to file a direct action in the 
estate proceeding to change and modify a 
previous order thereto, since the execu- 
trix' title to the property was the will itself 
and petitioner's interest in the property 
was merely contingent and depended 
solely on the outcome of the suit to contest 
the will. Turner v. Estate of Hightower, 
417 So. 2d 919 (Miss. 1982). 

In a suit by a devisee to remove and 
cancel clouds on her title to an undivided 
V2 interest in minerals in land which was 
sold at an execution sale, the 2-year stat- 
ute of limitations on actions to recover 
property sold by an order of the chancery 
court [Code 1972, § 15-1-37] was inappli- 



cable since "order of a chancery court" 
contemplates an order entered after com- 
pliance with Code 1972, § 91-7-195, pro- 
viding that a petition be filed with the 
court by creditors of a decedent having 
registered claims against an estate for the 
sale of land or personal property for pay- 
ment of debts, and Code 1972, § 91-7-197, 
providing that all interested parties shall 
be cited by summons or publication spec- 
ifying the time and place of the hearing on 
the petition. Simmons v. Abney, 292 So. 2d 
168 (Miss. 1974). 

Judgment creditors, solely as such, of 
the heirs or devisees, or of some of them, 
are not necessary or interested parties 
with respect to the question of notice un- 
der this section [Code 1942, § 591]. Town- 
send v. Beavers, 185 Miss. 312, 188 So. 1 
(1939), error overruled, 185 Miss. 327, 189 
So. 90 (1939). 

Failure of creditors instituting proceed- 
ings against widow as administratrix to 
have deceased's land sold to pay debts to 
make widow in individual capacity and 
adult children parties held to require re- 
versal and remandment, although decree 
adjudged that land was exempt. Eastman 
Gardiner Lumber Co. v. Carr, 175 Miss. 
36, 166 So. 401 (1936). 

Decree for sale of land to pay debts of 
deceased which affects rights of heirs at 



186 



Executors and Administrators 



§ 91-7-199 



law or devisees and which is rendered 
without process upon them is void. 
Eastman Gardiner Lumber Co. v. Carr, 
175 Miss. 36, 166 So. 401 (1936). 

Where chancellor had jurisdiction of mi- 
nor heirs and subject-matter in adminis- 
tratrix's petition for leave to sell, any 
defects in process and insufficiency of time 
held not to prevent application of two 
years' limitations. Neely v. Craig, 162 
Miss. 712, 139 So. 835 (1932). 

Sale under execution of land of decedent 
pursuant to decree recovered against ad- 
ministrator held void for noncompliance 
with statutes regulating proceedings for 
sale of decedent's land for payment of 
debts. Dolan v. Tate, 161 Miss. 615, 137 
So. 515 (1931). 

Where heirs at law, after the death of 
their intestate, conveyed his land, and 



then attempted to have it subjected to the 
payment of debts, thereby relieving the 
personal estate, the grantee of the land 
was a vitally interested party. Blum v. 
Planters' Bank & Trust Co., 154 Miss. 800, 
122 So. 784 (1929). 

Contingent remaindermen not neces- 
sary parties to proceeding for sale of real 
estate to discharge accumulated annuities 
without affirmative showing of existence 
of persons with vested interest. Swayze v. 
Powell, 153 Miss. 829, 121 So. 852 (1929). 

Heirs and devisees entitled to notice 
and hearing on proceeding by executor to 
obtain possession of real estate, where 
specific control not conferred by will and 
there was sufficient cash to pay debts. 
Miles v. Fink, 119 Miss. 147, 80 So. 532 
(1919). 



RESEARCH REFERENCES 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 799 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 831 et 
seq. (notice). 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 608, 609. 



Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 
risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-7-199. Hearing and decree. 

The court, after service of summons or proof of publication, shall hear and 
examine the allegations and evidence in support of the petition and the 
objections to and evidence against it, if any. If on such hearing the court be 
satisfied that the personal estate is insufficient to pay the debts of the deceased 
and that the land ought to be sold for that purpose, it may make a decree for 
the sale of a part or the whole of the land; and when a part only is decreed to 
be sold, the decree shall specify what part. If the real estate be so situated that 
a part cannot be sold without manifest prejudice to the heirs or devisees, the 
court may decree that the whole shall be sold; and the overplus arising from 
such sale, after the payment of debts and expenses, shall be distributed 
amongst the heirs according to the law of descents, or amongst the devisees 
according to the will. The heir or devisee whose lands shall be sold may compel 
all others holding or claiming under such intestate or testator to contribute in 
proportion to their respective interests, so as to equalize the burden of the loss. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 89; 
1871, § 1149; 1880, § 2040; 1892, § 1894; Laws, 1906, § 2069; Hemingway's 
1917, § 1736; Laws, 1930, § 1695; Laws, 1942, § 592. 



187 



§ 91-7-199 



Trusts and Estates 



JUDICIAL DECISIONS 



1. In general. 

2. Decree, and its effect. 

1. In general. 

A chancellor improperly ordered a sale 
of the property in an estate to satisfy 
debts thereof, where there was no proof as 
to the debts due and expenses of the 
estate. Brown v. McAfee, 421 So. 2d 1061 
(Miss. 1982). 

Upon denial of parties in interest, sum- 
moned on petition of creditor to sell land 
to pay debts, that the personalty was 
insufficient therefor, it was the duty of the 
court to hear evidence on the issue made. 
Blum v. Planters' Bank & Trust Co., 154 
Miss. 800, 122 So. 784 (1929). 

Creditor filing petition to sell land to 
pay debts had burden of proving person- 
alty was insufficient therefor. Blum v. 
Planters' Bank & Trust Co., 154 Miss. 800, 
122 So. 784 (1929). 

Court had duty of hearing evidence on 
issue made by pleadings in proceeding by 
creditor to sell land to pay debts. Blum v. 
Planters' Bank & Trust Co., 154 Miss. 800, 
122 So. 784 (1929). 

Court, on petition of creditor to sell land 
to pay debts, had duty of adjudicating 
asserted vendor's lien on cross-petition of 
party in interest. Blum v. Planters' Bank 
& Trust Co., 154 Miss. 800, 122 So. 784 
(1929). 

Executor cannot purchase at chancery 
sale to pay debts, and his vendees do not 
acquire title. Belt v. Adams, 124 Miss. 194, 
86 So. 584 (1920), error overruled, 125 
Miss. 387, 87 So. 666 (1921). 

2. Decree, and its effect. 

In proceedings divesting title to lands 
out of the legatees or heirs and vesting the 
same in the executor or administrator the 
statutes must necessarily be complied 
with to effect such a divestiture, and 
where the decree of court ordering sale did 
not adjudicate that the personal estate 
was insufficient to pay debts and that land 
ought to be sold for that purpose, did not 
decree the sale of a part or the whole of the 
land, and described no land, it was wholly 
insufficient to order a judicial sale. 
McWilliams v. Estate of Brown, 183 So. 2d 
820 (Miss. 1966). 



Where sale of land to pay debts is shown 
to have been made under a solemn decree 
of chancery court, with proper notice and 
appearance by all parties in interest, and 
that decree of confirmation was unap- 
pealed from, the presumption is that 
chancery court had acted in good faith in 
ordering the sale and that administratrix 
was guilty of no bad faith in conducting 
the sale and conveying the property to the 
purchaser, the court necessarily adjudi- 
cating that the property had brought a 
fair price in confirming the sale. Gill v. 
Johnson, 206 Miss. 707, 40 So. 2d 600 
(1949). 

Decree for sale of land to pay debts of 
deceased which affects rights of heirs at 
law or devisees and which is rendered 
without process upon them is void. 
Eastman Gardiner Lumber Co. v. Carr, 
175 Miss. 36, 166 So. 401 (1936). 

Sale under execution of land of decedent 
pursuant to decree recovered against ad- 
ministrator held void for noncompliance 
with statutes regulating proceedings for 
sale of decedent's land for payment of 
debts. Dolan v. Tate, 161 Miss. 615, 137 
So. 515 (1931). 

Heirs of decedent suing to remove, as 
cloud on title, claim asserted through pur- 
chase at execution sale under judgment 
against ancestor's representative, need 
not offer to pay judgment or amount for 
which land was sold. Dolan v. Tate, 161 
Miss. 615, 137 So. 515 (1931). 

Decree ordering sale of land to pay 
debts was final decree as regards appeal. 
Blum v. Planters' Bank & Trust Co., 154 
Miss. 800, 122 So. 784 (1929). 

A sale decreed to be made for cash is 
void if part of the purchase money is not 
paid, but credited on a debt due from the 
purchaser to the executor individually; 
and a confirmation upon a report conceal- 
ing the facts is fraudulent and does not 
validate the sale. Sharpley v. Plant, 79 
Miss. 175, 28 So. 799, 89 Am. St. R. 588 
(1900). 

A decree ordering lands sold for the 
payment of debts, without notice to the 
parties in interest, is void. United States 
v. Curry, 47 U.S. 106, 12 L. Ed. 363 (1848). 



188 



Executors and Administrators § 91-7-203 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 
Administrators §§ 804 et seq. trators §§ 612 et seq. 

§ 91-7-201. Mistake in description of land may be corrected. 

If any mistake shall be made in the description of any land of a decedent 
sold or leased, either in the petition, decree, or other part of the proceedings, 
the same may be corrected by the court on petition of the creditor or purchaser 
or his assigns, and on citation to the executor or administrator. 

SOURCES: Codes, 1892, § 1897; Laws, 1906, § 2072; Hemingway's 1917, § 1739; 
Laws, 1930, § 1696; Laws, 1942, § 593. 

JUDICIAL DECISIONS 

1. In general. description." Pearson v. Caldwell, 93 Miss. 

Sale of land not included in petition, nor 637, 47 So. 436 (1908). 
in decree of confirmation, not "mistake in 

§ 91-7-203. Bond to pay debts may be given and decree for 
sale not made. 

A decree for the sale or lease of land shall not be made if any person 
interested will give bond, describing therein the land sought to be sold, payable 
to the executor or administrator in a sum to be fixed and with sureties 
approved by the court, conditioned to pay all the debts duly registered against 
the estate and the expenses of the administration, so far as the personal estate 
of the deceased shall be insufficient to pay the same. Such bond shall be filed 
among the papers of administration and entered on the minutes of the court, 
and shall have the force and effect of a judgment, upon which execution and 
other necessary process may be issued in the name of the executor or 
administrator, after the expiration of six months from the date it shall have 
been given, against the obligors therein from time to time, until such debts and 
expenses of administration be paid or the penalty of the bond exhausted. The 
same may be levied on the lands described in the bond, and the entire interest 
of the deceased therein may be sold as if the court had decreed the sale in the 
first instance; and the property of the sureties on said bond may be sold for 
whatever the land may be insufficient to pay. Instead of enforcing said bond, 
the executor or administrator or any creditor may petition anew for the sale of 
the land, as if such bond had not been given; and after the sale under such 
proceedings, the bond may be enforced, in the manner provided, for whatever 
the land may be insufficient to pay, and no other bond shall be allowed to 
prevent a decree for a sale or lease of the land. 

SOURCES: Codes, 1892, § 1898; Laws, 1906, § 2073; Hemingway's 1917, § 1740; 
Laws, 1930, § 1697; Laws, 1942, § 594. 



189 



§ 91-7-205 Trusts and Estates 

§ 91-7-205. Bond required in decree for sale of lands; waiver 
of bond. 

Whenever an executor or administrator sells land pursuant to a decree of 
the court or chancellor in vacation, said executor or administrator shall 
execute bond with sufficient sureties in an amount equal to the proceeds of the 
sale of the land. Said bond shall be executed any time before confirmation of 
sale, either by the court or chancellor in vacation, and may be approved by the 
court, chancellor in vacation, or the clerk of the chancery court. Such bond 
shall be payable to the state and shall be conditioned for the faithful 
application of the proceeds of the sale. When, however, decree ordering the sale 
of land shall fix an amount or estimated amount to be paid in cash before 
confirmation, the executor or administrator shall, before sale, execute bond 
with sufficient sureties to cover such amount or estimated amount to be paid 
in cash, conditioned for the faithful application of the same which bond may be 
approved by the court, the chancellor in vacation, or the clerk of the chancery 
court. 

After the expiration of the time in which all claims against the estate of 
deceased persons must be registered, probated and allowed as provided in 
Section 91-7-151, Mississippi Code of 1972, the chancellor may waive all or any 
part of the bond when all the beneficiaries to the proceeds of the sale petition 
the court to authorize the sale and waive the necessity of a bond. 

SOURCES: Codes, 1880, § 2045; 1892, § 1905; Laws, 1906, § 2080; Hemingway's 
1917, § 1747; Laws, 1930, § 1698; Laws, 1942, § 595; Laws, 1914, ch. 210; 
Laws, 1975, ch. 405, eff from and after passage (approved March 24, 1975). 

JUDICIAL DECISIONS 

1. In general. itself by the person charged with its cus- 

Administratrix de bonis non entitled to tody in the place where by law it should be 

allowance for premium on special bond kept. Shannon v. Summers, 86 Miss. 619, 

executed to collect money for land sold by 38 So. 345 (1905). 

her predecessor under order of court. An executor must give the bond re- 
Davis v. Blumenberg, 107 Miss. 432, 65 quired for the faithful application of the 
So. 503 (1914). proceeds, although the will authorizes 
Parol testimony by an administrator him to administer the estate without 
that he executed the statutory bond is bond, and if he fails to do so the sale will 
incompetent in the absence of a showing be void. Sharpley v. Plant, 79 Miss. 175, 28 
that search had been made for the bond So. 799, 89 Am. St. R. 588 (1900). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 
Administrators § 811. trators §§ 630, 631. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 871 et 
seq. (posting of bond). 



190 



Executors and Administrators § 91-7-209 

§ 91-7-207. Failure to give bond. 

If an executor or administrator who has been ordered to sell land of a 
decedent fail to give the bond required, the court may, after five days' notice to 
the executor or administrator, direct a master or special commissioner to make 
the sale, who shall give bond with sureties, as the executor or administrator 
was required to do, and make sale and report it and, after a confirmation of the 
sale, convey the land as the executor or administrator might have done under 
the decree. The master or commissioner shall be allowed by the court such 
commissions as would accrue from the sale to the executor or administrator, or 
such compensation as the court may order. 

SOURCES: Codes, 1880, § 2046; 1892, § 1906; Laws, 1906, § 2081; Hemingway's 
1917, § 1748; Laws, 1930, § 1699; Laws, 1942, § 596. 

§ 91-7-209. Purchase-money a charge on property. 

Where the property of a decedent shall be sold by order of the court in 
which the estate is being administered, and the price paid at such sale for the 
property has been applied to the payment of debts for which the property 
might lawfully have been sold, or has been distributed to the heirs, legatees, or 
distributees, or to the guardians of such as have guardians, the property, if 
such sale were illegal, shall be charged in favor of the purchaser and his 
assigns with a lien for the purchase-money paid for it at such sale, and interest 
thereon. Such lien may be enforced in chancery or may be availed of in defense 
of any action for the land, in the same manner in which a claim for valuable 
improvements may be allowed in equity. In case of personal property, the 
possessor having such lien shall be entitled to retain possession until his claim 
be paid or tendered, unless the party having the title shall resort to the 
chancery court to adjust the rights of the parties and to sell said property. 

SOURCES: Codes, 1880, § 2052; 1892, § 1907; Laws, 1906, § 2082; Hemingway's 
1917, § 1749; Laws, 1930, § 1700; Laws, 1942, § 597. 

Cross References — Preference of purchase money mortgages, see § 89-1-45. 

JUDICIAL DECISIONS 

1. In general. the purchaser. Gaines v. Kennedy, 53 

But if the money in such cases were Miss. 103 (1876). 

paid by the administrator to the creditors One who, through an illegal sale of 

of the estate, the purchaser has only alien decedent's land, paid money into the 

on the land, and his injunction should be hands of an administrator, which was 

limited accordingly. Hill v. Billingsly, 53 used to pay debts of the decedent, is enti- 

Miss. Ill (1876). tied, in equity, to be reimbursed out of the 

If the heir, after majority, receive or proceeds of a subsequent valid sale. Short 

retain the purchase money of a void sale of v. Porter, 44 Miss. 533 (1870); Cole v. 

land, he will be estopped from executing a Johnson, 53 Miss. 94 (1876); Gaines v. 

judgment in ejectment therefor, and may Kennedy, 53 Miss. 103 (1876). 

be restrained by any party claiming under The purchaser of the lands at a void sale 

191 



§ 91-7-211 Trusts and Estates 

by an administrator can claim no equity purchase money has been paid and ap- 
with respect to the land purchased, as plied to their benefit. Jayne v. Boisgerard, 
against the heirs, except so far as the 39 Miss. 796 (1861). 

§ 91-7-211. Estoppel from receipt of purchase-money. 

Nothing in Section 91-7-209 shall hinder the application of the doctrine of 
estoppel to assert title to adult heirs who received a share of the purchase- 
money of land as heretofore announced and applied in this state. The same 
rule may be applied to minors, persons of unsound mind, convicts of felony, and 
other wards whose guardians received for them a share of the purchase-money, 
whether it were actually applied to the benefit of or received by such person 
under disability or not. 

SOURCES: Codes, 1880, § 2053; 1892, § 1908; Laws, 1906, § 2083; Hemingway's 
1917, § 1750; Laws, 1930, § 1701; Laws, 1942, § 598. 

JUDICIAL DECISIONS 

1. In general. jority, receive from the administrator the 

If a ward, after majority, receive from proceeds of a void sale, it will be an 

the guardian the proceeds of a void sale, it affirmance of the sale. Lee v. Gardiner, 26 

will be an affirmance of the sale. Handy v. Miss. 521 (1853); Kempe v. Pintard, 32 

Noonan, 51 Miss. 166 (1875); Gaines v. Miss. 324 (1856); Wilie v. Brooks, 45 Miss. 

Kennedy, 53 Miss. 103 (1876); Hill v. 542 (1871). 

Billingsly, 53 Miss. Ill (1876). 
Under doctrine referred to in the section 

[Code 1942, § 598], if the heir, after ma- 

§ 91-7-213. Borrowing money to pay claims. 

When an executor or administrator shall discover that the personal 
property will not be sufficient to pay the debts of the decedent and the expenses 
of the administration of the estate, he may file a petition in the chancery court 
in which the estate is being administered, for the purpose of borrowing money 
to be secured by a deed of trust, mortgage, or other encumbrance on the lands 
of the decedent, except the exempt property or homestead which shall not be so 
encumbered save to pay an indebtedness which constitutes a lien on such 
exempt property or homestead, and then not without the consent of the 
exemptionist. The money, when so borrowed, shall be used to pay said claims 
and expenses. 

SOURCES: Codes, 1930, § 1702; Laws, 1942, § 599; Laws, 1930, ch. 14. 

§ 91-7-215. Procedure for borrowing. 

With such petition the executor or administrator shall file and exhibit to 
the court a true account of the personal estate, debts due from the deceased, 
the expenses, and a description of the land to be used as security for the money 
so borrowed. The court, after service of summons or proof of publication of 

192 



Executors and Administrators § 91-7-221 

summons, shall hear and examine the allegations and evidence in support of 
the petition and the objections to and the evidence against it, if any. If on the 
hearing, the court be satisfied that the personal estate is insufficient to pay the 
debts of the deceased and said expenses, and that the land ought to be 
encumbered for such purposes, it may make a decree for the encumbrance of a 
part or the whole of the land; and when a part only is decreed to be so 
encumbered, the decree shall specify what part. 

SOURCES: Codes, 1930, § 1703; Laws, 1942, § 600; Laws, 1930, ch. 14. 

§ 91-7-217. Overplus and contribution. 

In the event the land so encumbered should be thereafter sold by 
foreclosure or otherwise to satisfy the said debt, interest, attorney's fee, 
trustee's fees, or expenses of such sale, and there shall exist an overplus of 
money above the debt, interest, attorney's fees, trustee's fees, and expenses of 
such sale, the overplus shall be distributed among the heirs according to the 
law of descent, or among the devisees according to the will. The heir or devisee 
whose land shall be sold may compel all others holding or claiming under such 
intestate or testator to contribute in proportion to their respective interests, so 
as to equalize the burden of loss. 

SOURCES: Codes, 1930, § 1704; Laws, 1942, § 601; Laws, 1930, ch. 14. 

§ 91-7-219. Procedure in vacation. 

Such decree may be rendered by the presiding chancellor of the court in 
vacation at any time or place within his district, provided summons has been 
served on the heirs of the decedent, or devisees under the will of the testator, 
in the manner provided by law for the service of summons on defendants in 
chancery for at least ten days before the hearing. In such summons, the time 
and place of the hearing and the purpose of the proceeding shall be definitely 
stated; and should the summons be published, such publication shall be 
completed at least ten days before the hearing. 

SOURCES: Codes, 1940, § 1705; Laws, 1942, § 602; Laws, 1930, ch. 14. 
Cross References — Additional powers of chancellor in vacation, see § 9-5-97. 

§ 91-7-221. Executor or administrator to make title to land. 

If any person sell lands, enter into contract to make title, and die before 
the title be made, then the person to whom the title was to be made, his heirs 
or assigns, may petition the court which granted the letters on the estate of the 
vendor, for an order on the executor or administrator to make title agreeably 
to the contract. After the parties interested have been cited by summons or by 
publication, the court shall hear the petition and evidence, and may decree 
that the executor or administrator make title according to the contract. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (114); 1857, ch. 60, art. 137; 
1871, § 1195; 1880, § 2092; 1892, § 1902; Laws, 1906, § 2077; Hemingway's 
1917, § 1744; Laws, 1930, § 1706; Laws, 1942, § 603. 

193 



§ 91-7-223 Trusts and Estates 

Cross References — Form of conveyance by executor or administrator, see § 89-1- 
67. 

JUDICIAL DECISIONS 

1. In general. Van Etten v. Johnson (In re Estate of 

Contract for sale was not rendered void Pickett), — So. 2d — , 2004 Miss. App. 

by the seller's death, though the fact of LEXIS 67 (Miss. Ct. App. Feb. 3, 2004). 

her death did render her attorney in fact A deed will not be ordered where it 

legally incapable of proceeding to carry appears that the deceased made a valid 

out the remaining terms of the contract; sale of the land to another prior to the 

however, the contract remained a binding contract with the petitioner, and of which 

agreement that could be enforced against the petitioner had notice. White v. Gilbert, 

the seller's estate in a probate proceeding. 39 Miss. 802 (1861). 

§ 91-7-223. Executors and administrators may make deeds of 
conveyance. 

The administrator, executor, or testamentary trustee may at any time, by 
and with the consent of the chancery court or the chancellor in vacation, when 
the chancellor deems it to the best interests of the estate, execute a deed of 
conveyance conveying any real property formerly owned by the decedent, 
where said decedent during his lifetime had executed any bond for title, 
optional contract, or other instrument conferring upon any party the right to 
purchase and secure title to said real property, where the execution of such 
conveyance is necessary in order to carry out the terms, provisions, or 
stipulation of the said bond for title, optional contract, or other instrument. 

SOURCES: Codes, Hemingway's 1917, § 1733; Laws, 1930, § 1707; Laws, 1942, 
§ 604; Laws, 1912, ch. 143. 

§ 91-7-225. Lands may be leased to pay debts. 

In case it shall be made to appear to the court that a lease of the lands of 
the deceased can be made to raise the money necessary for the payment of the 
debts of the deceased, and that the leasing thereof will be to the interest of the 
devisees, legatees, heirs, or distributees, the court may, in its discretion, decree 
the same to be leased. If a lease of the lands, or any part thereof, be decreed, 
the executor or administrator shall, upon giving the notice as in like case of 
sale, lease the same at public outcry or privately, as directed by the decree, to 
the person who will take the lands for the fewest number of years, not 
exceeding fifteen, and pay, either in cash or at such time as shall be fixed by the 
decree, the specific sum to be stated therein, equal to the amount of the debts 
of the deceased to be paid and the expenses of administration. If the lease be 
on credit, the lessee shall give security for the payment of the sum, to be 
approved by the executor or administrator. 

SOURCES: Codes, 1892, § 1896; Laws, 1906, § 2071; Hemingway's 1917, § 1738; 
Laws, 1930, § 1708; Laws, 1942, § 605. 

Cross References — Action by administrator or executor for rent due deceased, see 
§ 89-7-13. 
Lease of farm lands, see § 91-7-171. 

194 



Executors and Administrators § 91-7-227 

JUDICIAL DECISIONS 

1. In general. Approved sale of lease by administrator 

Under this section [Code 1942, § 605] valid, though administrator a minor, 

and sections providing for the sale of lands Giglio v. Woollard, 126 Miss. 6, 88 So. 401, 

by a personal representative for the pay- 14 A.L.R. 616 (1921). 

ment of debts in case the personal prop- The lease of a decedent's lands by the 

erty is insufficient, it was the duty of a administrator, with the consent of the 

personal representative to pay the taxes heirs, for the purpose of paying the debts 

on the lands of the estate for the purpose f t h e estate is va i ic j Ashley v. Young, 79 

of preserving the lands for the benefit of Miss 12 9 ? 29 So. 822 (1901). 
creditors, as well as for the legatees and 
distributees. Tonnar v. Wade, 153 Miss. 
722, 121 So. 156 (1929). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 33 C.J.S., Executors and Adminis- 
Administrators §§ 540 et seq. trators § 322. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 922 et 
seq. (lease of property). 

§ 91-7-227. Executors and administrators to renew obligation 
and encumbrances of estate. 

The chancery court or the chancellor in vacation, when he deems it to the 
best interest of the estate, may authorize the administrator, executor, or 
testamentary trustee to renew for a specified time any obligation of the 
deceased and, if such obligation be secured by encumbrance on any property, to 
renew such encumbrance upon such property. If it be shown to the interest of 
the estate, such chancery court or chancellor in vacation may direct said 
administrator, executor, or testamentary trustee to obtain money to pay off 
said obligation or encumbrance and to execute a new obligation or encum- 
brance to secure said money; and such obligation or encumbrance extended, 
renewed, or made shall be a valid charge on the estate or the property included 
in said encumbrance. Such encumbrance, whether renewed, extended, or 
made, shall not include any other property not embraced in the pre-existing 
encumbrance. 

SOURCES: Codes, Hemingway's 1917, § 1732; Laws, 1930, § 1709; Laws, 1942, 
§ 606; Laws, 1912, ch. 143. 

JUDICIAL DECISIONS 

1. In general. Orgill Bros. v. Perry, 157 Miss. 543, 128 

Where note sued on purported to have So. 755 (1930). 

been executed by defendant as adminis- Executors and trustees of residue of 

tratrix, it devolved on plaintiff suing her estate not authorized to borrow money for 

personally to aver in declaration whether estate and pledge stock therefor, could not 

note was executed without authority, do so under decree of chancery court. 

195 



§ 91-7-229 Trusts and Estates 

Luckett v. Brickell, 115 Miss. 457, 76 So. 
502 (1917). 

§ 91-7-229. Claims may be sold or compromised. 

The court or chancellor in vacation, on petition for that purpose, may 
authorize the executor or administrator to sell or compromise any claim 
belonging to the estate which cannot be readily collected; but an order 
authorizing a sale of any claim shall not be made until after six months from 
the grant of the letters. The court or chancellor shall specify the terms, 
conditions, and notice of such sale. In compromising any claim, the executor or 
administrator may receive property, real or personal, in his name as such, and 
he shall account for the same as assets of the estate. The executor or 
administrator shall report, in writing, all sales and compromises to the next 
term of the court. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 20 (6); 1857, ch. 60, art. 95; 
1871, § 1155; 1880, § 2065; 1892, § 1890; Laws, 1906, § 2065; Hemingway's 
1917, § 1730; Laws, 1930, § 1710; Laws, 1942, § 607; Laws, 1936, ch. 238. 

Cross References — Petitions for authority to compromise claims for wrongful 
death or injury, see Miss. Uniform Chancery Court Rule 6.11. 

RESEARCH REFERENCES 

ALR. Power and responsibility of exec- Am Jur. 31 Am. Jur. 2d, Executors and 
utor or administrator to compromise Administrators §§ 616 et seq. 
claim due estate. 72 A.L.R.2d 191. 9A Am. Jur. PI & Pr Forms (Rev), Ex- 
Power and responsibility of executor or ecutors and Administrators, Forms 581 et 
administrator to compromise claim seq. (compromise, release, and settlement 
against estate. 72 A.L.R.2d 243. of claims due estate). 

Power and responsibility of executor or 8 Am. Jur. Legal Forms 2d, Executors 

administrator as to compromise or settle- and Administrators, §§ 104:164, 104:165, 

ment of action or cause of action for death. 104: 167 (will provision granting authority 

72 A.L.R.2d 285. to settle claims and obligations). 

§ 91-7-231. Actions which accrue in administration. 

An executor, administrator, or temporary administrator may maintain 
any action or suit which shall accrue to him in the due course of administra- 
tion, on any contract which he is authorized to make as such, or for the 
recovery of personal property, or for injuries thereto. 

SOURCES: Codes, 1857, ch. 60, art. 119; 1871, § 1176; 1880, § 2081; 1892, § 1920; 
Laws, 1906, § 2095; Hemingway's 1917, § 1762; Laws, 1930, § 1711; Laws, 
1942, § 608. 

Cross References — Suits for rent by executor or administrator, see § 89-7-13. 
Institution of suit by administrator, see § 91-7-61. 
Actions between corepresentatives, see § 91-7-247. 
Suits by foreign executor or administrator, see § 91-7-259. 

Requirement that, unless he is licensed to practice law, executor or administrator 
must retain solicitor, see Miss. Uniform Chancery Court Rules 6.01. 

196 



Executors and Administrators 



§ 91-7-233 



JUDICIAL DECISIONS 



1. In general. 

An administrator has the right to bring 
an action to protect the assets of the 
estate. Estate of Jackson v. Mississippi 
Life Ins. Co., 755 So. 2d 15 (Miss. Ct. App. 
1999). 

In an accountant negligence action aris- 
ing from the accountant's alleged negli- 
gence in performing accounting services 
for an estate, the trial court did not err in 
allowing plaintiffs other than the execu- 
trix to remain in the suit as nominal 



parties only; by naming the residuary 
beneficiaries plaintiffs, the executrix was 
protecting herself against any possible 
future lawsuits. Wirtz v. Switzer, 586 So. 
2d 775 (Miss. 1991). 

Code 1972 § 11-7-13 must be consid- 
ered in pari materia with Code 1972 
§§ 91-7-231, 91-7-233, which authorize 
only a personal representative to sue to 
recover the assets of the deceased. Thorn- 
ton v. Insurance Co. of N. Am., 287 So. 2d 
262 (Miss. 1973). 



RESEARCH REFERENCES 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 1124 et seq. 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 706 et seq. 

Law Reviews. Arnold, Damages Re- 
coverable in Mississippi for the Wrongful 



Death of an Adult. 53 Miss. L. J. 637, 
December, 1983. 

Brady, Hedonic damages. 59 Miss. L. J. 
495, Fall, 1989. 



91-7-233, 
tor. 



What actions survive to executor or administra- 



Executors, administrators, and temporary administrators may commence 
and prosecute any personal action whatever, at law or in equity, which the 
testator or intestate might have commenced and prosecuted. They shall also be 
liable to be sued in any court in any personal action which might have been 
maintained against the deceased. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (111); 1857, ch. 60, art. 119; 
1871, § 1176; 1880, § 2078; 1892, § 1916; Laws, 1906, § 2091; Hemingway's 
1917, § 1758; Laws, 1930, § 1712; Laws, 1942, § 609. 

Cross References — Requirement that, unless he is licensed to practice law, 
executor or administrator must retain solicitor, see Miss. Uniform Chancery Court Rule 
6.01. 

Petition for authority to compromise claims for wrongful death or injury, see Miss. 
Uniform Chancery Court Rule 6.11. 

JUDICIAL DECISIONS 



1. In general. §§ 91-7-231, 91-7-233, which authorize 

2. Actions on behalf of estate or benefi- only a personal representative to sue to 

recover the assets of the deceased. Thorn- 
ton v. Insurance Co. of N. Am., 287 So. 2d 
262 (Miss. 1973). 

This section [Code 1942, § 609] does not 
operate to authorize an administrator to 
ered in pari materia with Code 1972 exercise his decedent's right of election 



In general. 

Actions on behalf of estate or benefi- 
ciaries. 
Actions against estate. 

In general. 

Code 1972 § 11-7-13 must be consid- 



197 



§ 91-7-233 



Trusts and Estates 



against a spouse's will. Mullins' Estate v. 
Mullins' Estate, 239 Miss. 751, 125 So. 2d 
93, 83 A.L.R.2d 1073 (1960). 

This section [Code 1942, § 609] is in 
derogation of the common law. Southern 
Package Corp. v. Walton, 196 Miss. 786, 
18 So. 2d 458 (1944), cert, denied, 323 U.S. 
762, 65 S. Ct. 93, 89 L. Ed. 609 (1944). 

This section [Code 1942, § 609] being in 
derogation of common law must be strictly 
construed. McNeely v. City of Natchez, 
148 Miss. 268, 114 So. 484 (1927). 

Administrator's failure to file letters 
testamentary waived by failure to object 
before verdict. Linton v. Skinner, 122 
Miss. 613, 84 So. 800 (1920). 

2. Actions on behalf of estate or ben- 
eficiaries. 

Where a decedent was allegedly injured 
by medication during her life, and alleg- 
edly died from it, the estate administrator 
was to assert both a wrongful death action 
and a survival action against the drug 
manufacturer; if the jury found that the 
drug caused the decedent's death, then 
the recovery belonged to the wrongful 
death heirs. If the jury found that the 
drug did not cause the death, the estate 
could recover for any personal injuries 
caused by the drug, and the decedent's 
ex-husband could recover from the estate 
amounts he was entitled to under the 
decedent's holographic instrument. En- 
gland v. England (In re Estate of En- 
gland), 846 So. 2d 1060 (Miss. Ct. App. 
2003). 

Heirs of deceased smoker could not re- 
cover damages for injuries suffered by 
smoker during his lifetime in wrongful 
death action where jury found that cause 
of death was unrelated to smoker's lung 
cancer or chronic obstructive pulmonary 
disease, but rather was pulmonary embo- 
lism caused by complications resulting 
from treatment for gonorrhea in 1940's, 
and heirs did not also assert claim under 
survival statute. Wilks v. American To- 
bacco Co., 680 So. 2d 839 (Miss. 1996). 

An action for loss of consortium sur- 
vives the death of the party asserting it, 
and may be brought as any other action by 
the executor or administrator or personal 
representative of the deceased party. 
Flight Line v. Tanksley, 608 So. 2d 1149 
(Miss. 1992). 



Nonpossessory equitable claim of inter- 
vener in replevin action survives death of 
intervenor, whose executor is permitted to 
revive claim by intervention. Hall v. Cor- 
bin, 478 So. 2d 253 (Miss. 1985). 

Decedent's mother had no standing to 
bring a wrongful death action under § 11- 
7-13, even though decedent's will named 
her as executrix of his estate and sole 
primary beneficiary, where decedent left 
surviving him his wife, who was injured in 
the same accident and died approximately 
30 minutes after her husband; a cause of 
action accrued to the wife even though she 
survived decedent for only a few minutes, 
and this cause of action was an asset in 
her estate, upon which it was entitled to 
sue pursuant to § 91-7-233; furthermore, 
decedent's will could not circumvent the 
wrongful death statute, which created a 
new and independent cause of action in 
favor of those named in the statute, and 
recovery under the statute would become 
an asset of decedent's estate only if none of 
the statutory heirs had survived him. 
Partyka v. Yazoo Dev. Corp., 376 So. 2d 
646 (Miss. 1979). 

Action under the Federal Fair Labor 
Standards Act for overtime compensation, 
liquidated damages, and attorney's fees, 
survives the death of the employee. South- 
ern Package Corp. v. Walton, 196 Miss. 
786, 18 So. 2d 458 (1944), cert, denied, 323 
U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609 
(1944). 

Recovery for pain and suffering of de- 
ceased probably caused by alleged negli- 
gence of doctor in treating deceased be- 
tween time of gunshot wound and 
deceased's death could be had only in suit 
by personal representative and not by 
next of kin or heirs at law. Berryhill v. 
Nichols, 171 Miss. 769, 158 So. 470 (1935). 

Action to recover personal property, or 
to enforce contract, or recover damages for 
breach of contract, or for injury to person 
or property survives; pure penalty in- 
tended as punishment for misconduct 
does not survive. J.H. Leavenworth & Son 
v. Hunter, 150 Miss. 245, 116 So. 593 
(1928). 

Term "personal action" in this section 
[Code 1942, § 609] means action for re- 
covery of personal property, for breach of 
contract, or for injury to person or prop- 



198 



Executors and Administrators 



§ 91-7-235 



erty. Hamel v. Southern R. Co., 108 Miss. 
172, 66 So. 426 (1914), error overruled, 
108 Miss. 195, 66 So. 809 (1915). 

Administratrix may revive suit for per- 
sonal injuries to decedent and may there- 
after sue for his negligent death. Hamel v. 
Southern R. Co., 108 Miss. 172, 66 So. 426 
(1914), error overruled, 108 Miss. 195, 66 
So. 809 (1915). 

Action for penalty imposed by ordinance 
for failure to observe regulations in oper- 
ating ferry did not survive. Hamel v. 
Southern R. Co., 108 Miss. 172, 66 So. 426 
(1914), error overruled, 108 Miss. 195, 66 
So. 809 (1915). 

The right to sue for trespass to lands 
upon the death of the owner survives to 
the executor or administrator, and his 
heirs cannot sue. Conklin v. Alabama & V. 
Ry. Co., 81 Miss. 152, 32 So. 920 (1902). 

In a proper case, the administrator may 
recover exemplary damages of the defen- 
dant for assaulting and beating his intes- 
tate. Wagner v. Gibbs, 80 Miss. 53, 31 So. 
434, 92 Am. St. R. 598 (1902). 

3. Actions against estate. 

The liability of a decedent's widow in a 
personal action which survived his death 
is derivative only to her husband's estate, 
and to the maximum extent only of the 



amount of her inheritance from that es- 
tate, and this section [Code 1942, § 609] 
does not authorize a suit against the 
widow in her individual capacity, in an 
action to establish liability of the estate. 
State ex rel. Patterson v. Warren, 254 
Miss. 314, 182 So. 2d 234 (1966). 

An action to recover misappropriated 
county funds from members of the board 
of supervisors is a personal action and 
upon their deaths survives against their 
personal representatives. State ex rel. 
Patterson v. Warren, 254 Miss. 314, 182 
So. 2d 234 (1966). 

This statute controls a claim against a 
decedent's estate for personal injuries sus- 
tained in an automobile accident. Powell 
v. Buchanan, 245 Miss. 4, 147 So. 2d 110 
(1962). 

A personal representative is liable to 
suit on a claim arising from the alleged 
negligence of his decedent, notwithstand- 
ing the estate has been declared insolvent. 
Bullock v. Young, 243 Miss. 146, 137 So. 2d 
777 (1962). 

Claim against estate to recover amount 
paid on usurious contract may be pro- 
bated, and action on such claim is "per- 
sonal action," which survives death. 
Chandlee v. Tharp, 161 Miss. 623, 137 So. 
540, 78A.L.R. 445(1931). 



RESEARCH REFERENCES 



ALR. Validity of exception for specific 
kind of tort action in survival statute. 77 
A.L.R.3d 1349. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 435 et seq. 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 706 et seq. 



Law Reviews. Damages Recoverable 
in Mississippi for the Wrongful Death of 
an Adult. 53 Miss. L. J. 637, December, 
1983. 

Brady, Hedonic damages. 59 Miss. L. J. 
495, Fall, 1989. 



§ 91-7-235. 
istrator. 



What actions survive against executor or admin- 



When any decedent shall in his lifetime have committed any trespass, the 
person injured, or his executor or administrator, shall have the same action 
against the executor or administrator of the decedent as he might have had or 
maintained against the testator or intestate, and shall have like remedy as in 
other actions against executors and administrators. Vindictive damages shall 
not be allowed, and such action shall be commenced within one year after 
publication of notice to creditors to probate and register their claims. 



199 



§ 91-7-237 Trusts and Estates 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (119); 1857, ch. 60, art. 119; 
1871, § 1176; 1880, § 2080; 1892, § 1917; Laws, 1906, § 2092; Hemingway's 
1917, § 1759; Laws, 1930, § 1713; Laws, 1942, § 610. 

Cross References — Service of process on one of several executors or administra- 
tors, see § 13-3-53. 

Service of process on executor or administrator of nonresident motorist, see § 13-3- 
63. 

Statute of limitations for actions against executors or administrators, see § 15-1-25. 

JUDICIAL DECISIONS 

1. In general. for personal injuries sustained in an auto- 

The statute does not allow the recovery mobile accident. Powell v. Buchanan, 245 

of punitive damages against an estate Miss. 4, 147 So. 2d 110 (1962). 

because of a prior tort committed by the This section [Code 1942, § 610] is in 

decedent. Wilbanks v. Gray, 795 So. 2d 541 derogation of the common law. Southern 

(Miss. Ct. App. 2001). Package Corp. v. Walton, 196 Miss. 786, 

This section [Code 1942, § 610] prohib- 18 s . 2d 458 (1944), cert, denied, 323 U.S. 

its the award of vindictive damages 762 , 65 S. Ct. 93, 89 L. Ed. 609 (1944). 

against an estate of a decedent. Mends v. The provision against the allowance of 

Wolverton, 211 So 2d 847 (Miss 1968). vindictive damages is not applicable to an 

This section [Code 1942, § 610] does not acti(m b an administrator against a de _ 

limit the bringing of action against the fendant for assaulti and beati his 

estate for decedent s negligence. Jones v intestate w v Gibb 80 Miss 53 31 

Evans 247 Miss. 285, 156 So. 2d 742 go ^ ^ gt R 598 ' 
(1963). 

This statute is inapplicable to a claim 
against a decedent's estate for damages 

RESEARCH REFERENCES 

ALR. Validity of exception for specific Claim for punitive damages in tort ac- 

kind of tort action in survival statute. 77 tion as surviving death of tortfeasor or 
A.L.R.3d 1349. person wronged. 30 A.L.R.4th 707. 

§ 91-7-237. Death of party not to abate suit in certain cases. 

When either of the parties to any personal action shall die before final 
judgment, the executor or administrator of such deceased party may prosecute 
or defend such action, and the court shall render judgment for or against the 
executor or administrator. If such executor or administrator, having been duly 
served with a scire facias or summons five days before the meeting of the court, 
shall neglect or refuse to prosecute or defend the suit, the court may render 
judgment in the same manner as if such executor or administrator had 
voluntarily made himself a party to the suit. The executor or administrator 
who shall become a party shall be entitled to a continuance of the cause until 
the next term of the court. 

SOURCES: Codes, Hutchinson's 1848, ch. 58, art. 1 (47); 1857, ch. 61, art. 49; 
1871, § 677; 1880, § 1513; 1892, § 1918; Laws, 1906, § 2093; Hemingway's 
1917, § 1760; Laws, 1930, § 1714; Laws, 1942, § 611. 

200 



Executors and Administrators 



§ 91-7-237 



Cross References — Effect of death of party before expiration of statute of 
limitations, see § 15-1-55. 

Non-abatement of suits upon insolvency of estate, see § 91-7-273. 

JUDICIAL DECISIONS 



1. In general. 

2. Suits brought by decedent. 

3. Suits brought against decedent. 

1. In general. 

An action for loss of consortium sur- 
vives the death of the party asserting it, 
and may be brought as any other action by 
the executor or administrator or personal 
representative of the deceased party. 
Flight Line v. Tanksley, 608 So. 2d 1149 
(Miss. 1992). 

Where statute was re-enacted by legis- 
lature without change after decision hold- 
ing that term "personal action" is one 
brought for recovery of personalty, for en- 
forcement of some contract or to recover 
damages for its breach, or for recovery of 
damages for commission of injury to per- 
son or property, interpretation became 
part of statute, and could not be changed 
or modified except by legislature. 
Catchings v. Hartman, 178 Miss. 672, 174 
So. 553 (1937). 

Term "personal action" as used in stat- 
ute providing that, where either of parties 
to "personal action" shall die before final 
judgment, executor or administrator may 
prosecute or defend such action, does not 
include an action of slander, so as to 
entitle administratrix to continue the ac- 
tion, since statute, being in derogation of 
common law, must be strictly construed. 
Catchings v. Hartman, 178 Miss. 672, 174 
So. 553 (1937). 

This section [Code 1942, § 611] being in 
derogation of common law must be strictly 
construed. McNeely v. City of Natchez, 
148 Miss. 268, 114 So. 484 (1927). 

Term "personal action" in this section 
[Code 1942, § 611] means action for recov- 
ery of personal property for breach of 
contract, or for injury to person or prop- 
erty. McNeely v. City of Natchez, 148 Miss. 
268, 114 So. 484 (1927). 

Action for penalty imposed by ordinance 
for failure to observe regulations in oper- 
ating ferry did not survive. McNeely v. 
City of Natchez, 148 Miss. 268, 114 So. 
484 (1927). 



2. Suits brought by decedent. 

Where a cancer patient died while a 
medical malpractice suit he filed was 
pending, and his daughter was substi- 
tuted as plaintiff and was appointed exec- 
utrix of his estate, the trial court erred in 
dismissing the suit for failing to state a 
claim, because the amended complaint 
filed by the daughter on behalf of the 
estate sought recovery for injuries the 
patient suffered during his lifetime. 
Necaise v. Sacks, 841 So. 2d 1098 (Miss. 
2003). 

In an action to recover for damage to a 
life estate, the life tenant's sole heir could 
not be substituted as the plaintiff follow- 
ing the life tenant's death where no estate 
had been opened for the deceased life 
tenant and no administrator had been 
appointed, since the life tenant's sole heir 
did not automatically become her legal 
representative on her death (§ 91-7-237). 
Madison v. Vintage Petro., Inc., 872 F. 
Supp. 340 (S.D. Miss. 1994), dismissed, 85 
F.3d 625 (5th Cir. 1996), aff'd, 87 F.3d 
1311 (5th Cir. 1996). 

Actions for defamation are not personal 
actions for purposes of survival statute. 
Caine v. Hardy, 943 F.2d 1406 (5th Cir. 
1991), cert, denied, 503 U.S. 936, 112 S. 
Ct. 1474, 117 L. Ed. 2d 618 (1992). 

Action by anesthesiologist against hos- 
pital challenging suspension of his privi- 
leges was not rendered moot by plaintiff's 
death, as such parts of claim which al- 
leged wrongful discharge were preserved 
under state survival statute. Caine v. 
Hardy, 943 F.2d 1406 (5th Cir. 1991), cert, 
denied, 503 U.S. 936, 112 S. Ct. 1474, 117 
L. Ed. 2d 618 (1992). 

Action under the Federal Fair Labor 
Standards Act for overtime compensation, 
liquidated damages, and attorney's fees, 
survives the death of the employee. South- 
ern Package Corp. v. Walton, 196 Miss. 
786, 18 So. 2d 458 (1944), cert, denied, 323 
U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609 
(1944). 



201 



§ 91-7-239 



Trusts and Estates 



Judgment in action for injuries revived 
in name of wife as executrix held res 
judicata in her subsequent action for dam- 
ages sustained by herself and children. 
Edward Hines Yellow Pine Trustees v. 
Stewart, 135 Miss. 331, 100 So. 12 (1924). 

Dismissal of suit brought by two parties 
upon death of one of them without motion 
or other preliminary proceeding will be set 
aside on proper application and cause 
reinstated. Merchants' Bank & Trust Co. 
v. Mississippi Nat'l Bank, 108 Miss. 356, 
66 So. 537 (1914). 

Administratrix may revive action for 
personal injuries, and may thereafter sue 
for negligent death of decedent. Hamel v. 
Southern R. Co., 108 Miss. 172, 66 So. 426 
(1914), error overruled, 108 Miss. 195, 66 
So. 809 (1915). 

Railroad defendant in suit for personal 
injury not entitled to move for revocation 
of letters of administration granted for 



purpose of bringing suit. Yazoo & Miss. V. 
Ry. v. Jeffries, 99 Miss. 534, 55 So. 354 
(1911). 

3. Suits brought against decedent. 

An action against a member of a board 
of supervisors for the illegal appropriation 
of money survives against his estate. 
State ex rel. Patterson v. Warren, 254 
Miss. 314, 182 So. 2d 234 (1966). 

Provision for revival of pending action 
against deceased defendant's representa- 
tive does not permit collection by execu- 
tion of judgment rendered against repre- 
sentative. Dolan v. Tate, 161 Miss. 615, 
137 So. 515 (1931). 

Suit against deceased defendant may 
proceed to judgment without probating 
claim against estate. Dillard & Coffin Co. 
v. Woollard, 124 Miss. 677, 87 So. 148 
(1921). 



RESEARCH REFERENCES 



ALR. Death of party to arbitration 
agreement before award as revocation or 
termination of submission. 63 A.L.R.2d 
754. 

Validity of exception for specific kind of 



tort action in survival statute. 63 A.L.R.2d 
1327. 

Claim for punitive damages in tort ac- 
tion as surviving death of tortfeasor or 
person wronged. 30 A.L.R.4th 707. 



§ 91-7-239. Executor or administrator not to be sued for 
ninety days. 

A suit or action shall not be brought against an executor or administrator 
until after the expiration of ninety (90) days from the date of letters testamen- 
tary or of administration. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 6 (1); 1857, ch. 60, art. 126; 
1871, § 1184; 1880, § 2086; 1892, § 1922; Laws, 1906, § 2096a; Hemingway's 
1917, § 1764; Laws, 1930, § 1715; Laws, 1942, § 612; Laws, 1975, ch. 373, § 7, 
eff from and after January 1, 1976. 

Cross References — Statute of limitations in regard to actions against executors 
and administrators, see §§ 15-1-25 et seq. 

JUDICIAL DECISIONS 



1. In general. 

The purpose of this section [Code 1942, 
§ 612] is to allow time to the administra- 
tor to examine and understand the condi- 
tion of the estate, to provide the means of 
paying debts, if practicable, without suit 



by collection of assets, and to be advised of 
any demands against the estate which it 
may be necessary to defend. Great S. Box 
Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912 
(1957). 
Where an action was brought against 



202 



Executors and Administrators 



§ 91-7-241 



the administrator of an estate and two 
other defendants within four days after 
the administrator was issued letters, but 
the administrator did not raise the objec- 
tion that the action was prematurely 
brought, the codefendants of the adminis- 
trator could not raise the question. Great 
S. Box Co. v. Barrett, 231 Miss. 101, 94 So. 
2d 912 (1957). 

Suit could not properly be brought 
against an administratrix to have funds in 
a bank adjudged to belong to the plaintiff 
rather than to the estate until six months 
after date of letters of administration. 
Matthews v. Redmond, 202 Miss. 253, 32 
So. 2d 123 (1947). 

Statute allows four years and six 
months within which an executor or ad- 
ministrator can be sued. Toler v. Wells, 
158 Miss. 628, 130 So. 298 (1930). 

Claims maturing before decedent's 
death are barred, notwithstanding pro- 



bate, by failure to sue thereon within 4 
years and 6 months from grant of letters. 
Rogers v. Rosenstock, 117 Miss. 144, 77 
So. 958 (1918). 

Claim for medical services rendered 
during last illness of intestate not barred 
until after 4 years and 6 months. 
Hardenstein v. Brien, 96 Miss. 493, 50 So. 
979 (1910). 

A petition against the administrator 
and heirs to subject exempt property 
owned by decedent in his lifetime to a debt 
for labor performed, the amount of which 
has been allowed by the chancery court, is 
not a suit against an administrator, the 
proceeding not being a suit on a claim, and 
the administrator not being a necessary 
party thereto. Mitchener v. Robins, 73 
Miss. 383, 19 So. 103 (1895). 



RESEARCH REFERENCES 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 134 et seq. 



CJS. 34 C.J.S., Executors and Adminis- 
trators § 747. 



§ 91-7-241. Suit by or against administrator not to abate. 

If any executor or administrator die, resign, or be removed, suits or actions 
commenced by or against him shall not, for that reason, abate; but the same 
may be prosecuted by or against his successor, who may make himself a party 
by proper suggestion or, if he fail to do so, may be brought in by the opposite 
party by summons or scire facias. Judgments recovered by or against an 
executor or administrator who has died, resigned, or been removed may be 
revived for or against his successor in the same way. 

SOURCES: Codes, 1857, ch. 60, art. 124; 1871, § 1181; 1880, § 1514; 1892, § 1919; 
Laws, 1906, § 2094; Hemingway's 1917, § 1761; Laws, 1930, § 1716; Laws, 
1942, § 613. 

Cross References — Limitation of actions against executor or administrator, see 
§ 15-1-25. 
Abatement of suits upon insolvency of estate, see § 91-7-273. 

JUDICIAL DECISIONS 



1. In general. 

The administrator de bonis non may 
suggest the death of his predecessor, and 
ask that a judgment recovered by him be 
revived; he need not resort to scire facias. 



Dibble v. Norton, 44 Miss. 158 (1870); 
Bowen v. Bonner, 45 Miss. 10 (1871). 

The statute applies to administrators 
appointed in this state only. Bowen v. 
Bonner, 45 Miss. 10 (1871). 



203 



§ 91-7-243 Trusts and Estates 

If a plaintiff die after the rendition of a favor of the administrator. New Orleans, 
judgment in his favor, the defendant may J., & G.N.R.R. v. Rollins, 36 Miss. 384 
appeal before the judgment is revived in (1858). 

RESEARCH REFERENCES 

ALR. Validity of exception for specific 
kind of tort action in survival statute. 77 
A.L.R.3d 1349. 

§ 91-7-243. Not bound to plead specially. 

Executors, administrators, and temporary administrators shall not be 
bound to plead specially to any action or suit at law brought against them, but 
they may give any special matter in evidence under the general issue. An 
executor or administrator, or the sureties on his bond, shall not be chargeable 
beyond the amount of the assets of the testator or intestate by reason of any 
mistake, omission, or false pleading of the executor or administrator. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (105); 1857, ch. 60, art. 125; 
1871, § 1183; 1880, § 2089; 1892, § 1923; Laws, 1906, § 2097; Hemingway's 
1917, § 1765; Laws, 1930, § 1717; Laws, 1942, § 614. 

JUDICIAL DECISIONS 

1. In general. If the administrator elect to plead spe- 

Under the statute, the failure to plead cially, he will be held to the strictness of 

plene administravit does not raise a pre- pleading. Wren's Adm'r v. Span's Adm'r, 2 

sumption of assets. Dobbins v. Halfacre, Miss. (1 Howard) 115 (1834). 
52 Miss. 561 (1876). 

§ 91-7-245. Any one interested may defend suit. 

Any legatee, heir, distributee, or creditor may be admitted by the court to 
defend any suit against the executor or administrator of the estate in which he 
is interested, and the case shall be tried and judgment rendered as if the suit 
had been defended by the executor or administrator; but judgment shall be 
given against the party for costs incurred in consequence of his becoming a 
party, if judgment shall be had against the executor or administrator. 

SOURCES: Codes, 1880, § 2090; 1892, § 1924; Laws, 1906, § 2098; Hemingway's 
1917, § 1766; Laws, 1930, § 1718; Laws, 1942, § 615. 

§ 91-7-247. Actions which accrue between administrators. 

When there are two or more administrators of an estate, and one or more 
of them take all the assets, or the greatest part thereof, and refuse to pay the 
debts or funeral expenses of the deceased, or to account with the other, the 
court, on petition of the aggrieved administrator and five days' notice thereof 
to the other, may make an order requiring the delivery or payment to the 
aggrieved administrator of the proportionate share of the estate to which he is 
entitled. To enforce compliance, the court may revoke the letters of the 

204 



Executors and Administrators § 91-7-251 

administrator in default, and may fine him not exceeding one hundred dollars 
or imprison him not exceeding three months as for contempt. Any executor 
being a residuary legatee may proceed in the same way and with like effect 
against his co-executor to recover his part of the estate. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (110); 1857, ch. 60, art. 120; 
1871, § 1177; 1880, § 2082; 1892, § 1921; Laws, 1906, § 2096; Hemingway's 
1917, § 1763; Laws, 1930, § 1719; Laws, 1942, § 616. 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 
Administrators §§ 1155 et seq. trators § 711. 

§ 91-7-249. Executor in his own wrong. 

If any person shall alienate or embezzle any of the goods, chattels, 
personal property, or money of a person deceased, before taking out letters 
testamentary or of administration, such person shall be liable to the action of 
creditors and other persons aggrieved, as being executor in his own wrong. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (121); 1857, ch. 60, art. 127; 
1871, § 1185; 1880, § 2087; 1892, § 1926; Laws, 1906, § 2100; Hemingway's 
1917, § 1768; Laws, 1930, § 1720; Laws, 1942, § 617. 

JUDICIAL DECISIONS 

1. In general. claim that the notes were assets and only 

Personal liability of administrator for collectible by an administrator to be ap- 

value of cotton taken from land of intes- pointed. Weaver v. Williams, 75 Miss. 945, 

tate and sold by him did not preclude him 23 So. 649 (1898). 

from bringing action against purchaser Charges paid by executors de son tort 

for value thereof. McGraw v. Robinson cannot be availed of as a set-off against a 

Mercantile Co., 95 Miss. 828, 49 So. 260 c i a i m f an estate when unsupported by 

(1909). evidence showing that they were legal 

After having jointly converted promis- demands against the estate. Weaver v. 

sory notes which had never been returned Williams, 75 Miss. 945, 23 So. 649 (1898). 
as assets, executors de son tort cannot 

RESEARCH REFERENCES 

ALR. Liability of estate for tort of exec- 26 Am. Jur. Proof of Facts 2d 663, Sur- 

utor, administrator, or trustee. 82 charge of Executor for Nonpayment of 

A.L.R.3d 892. Estate's Tax Liability. 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 

Administrators §§ 34 et seq. trators §§ 989 et seq. 

§ 91-7-251. Liability of executor or administrator of an exec- 
utor de son tort. 

The executor or administrator of an executor de son tort shall be liable to 
a recovery to the extent of the value of the property received or held by such 
executor de son tort, if sufficient assets shall have been received to pay the 

205 



§ 91-7-253 Trusts and Estates 

same. Any one who may have become liable as executor de son tort in any other 
state shall be liable to be sued in this state as such by any creditor, legatee, or 
distributee. 

SOURCES: Codes, 1857, ch. 60, art. 133; 1871, § 1191; 1880, § 2088; 1892, § 1927; 
Laws, 1906, § 2101; Hemingway's 1917, § 1769; Laws, 1930, § 1721; Laws, 
1942, § 618. 

RESEARCH REFERENCES 

ALR. Liability of estate for tort of exec- CJS. 34 C.J.S., Executors and Adminis- 
utor, administrator, or trustee. 82 trators §§ 991 et seq. 
A.L.R.3d 892. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 1029 et seq. 

§ 91-7-253. Fiduciary not to use funds; investment by fidu- 
ciary bank in time certificates of deposit. 

No executor, administrator, guardian, receiver or other fiduciary ap- 
pointed by or acting pursuant to the authority of any chancery court may 
borrow or use for his own benefit, directly or indirectly, any of the funds or 
property of the estate committed or entrusted to him by such court, nor 
purchase or acquire, directly or indirectly, any interest therein adverse to any 
creditor or beneficiary of such estate. Nor may he loan the same, or any part 
thereof, to any parent, brother, sister, son, daughter of, or one in loco parentis 
to the ward or himself, nor to any attorney or agent representing him or such 
estate, nor to the wife or any child of such attorney or agent. Nor may any court 
or chancellor authorize or ratify any such prohibited use, acquisition or loan. 

Provided, however, the above prohibitions shall not extend to prohibit the 
investment by a banking corporation of the funds of an estate committed or 
entrusted to it in time certificates of deposit, provided such be approved by the 
chancellor, and the banking corporation shall first secure such certificates of 
deposit in excess of the portion insured by the Federal Deposit Insurance 
Corporation, as provided in section 81-5-33, Mississippi Code of 1972. 

SOURCES: Codes, 1942, § 619; Laws, 1936, ch. 243; Laws, 1977, ch. 493, eff from 
and after passage (approved April 15, 1977). 

Cross References — Additional provisions governing the conduct of executors, 
administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et 
seq. 

Petition for authority to make loans or investments, see Miss. Uniform Chancery 
Court Rule 6.10. 

JUDICIAL DECISIONS 

1. In general. estate, even though the wife asserted that 

A conservator's wife could be held liable she was only a "scrivener" for her husband 

in an action alleging intentional misap- and was not responsible for any of the 

propriation of funds and defrauding of the transactions in the conservatorship ac- 

206 



Executors and Administrators § 91-7-255 

count, where the wife received payment The Chancellor properly removed an 

for keeping the books and received the administrator under § 91-7-253, where 

benefit of direct loans and gifts from the the administrator admitted that he had 

conservatorship monies, she also received spent or lent large sums of funds taken 

the indirect benefit of the use of other from estate for which he was unable to 

items purchased with the monies, she account. Kelly v. Shoemake, 460 So. 2d 

participated in the disbursal of the monies 811 (Miss. 1984). 

by writing the checks though she did not Where the testator bequeathed half of 

sign them, and she clearly knew where his stock to his daughter and the other 

the monies were going. Bryan v. Holzer, half to his son for Hfe? with rema inder to 

589 So. 2d 648 (Miss. 1991). the daughter and the daughter as execu- 

A finding that a conservator and his trix surren dered the certificate and ob- 

wife violated the fiduciary duty to the tained tw0 certificateS) one f which was 

ward and converted the wards funds to igsued in the son > s name and thereafter 

their own use was supported by evidence the son transferred the certificate to 

that the wards funds had been used to d ht retaining beneficial interest 

purchase a van which was used by he therein for Hf ^ gection [Code 

conservator and his wife, and that the fi ~ inl ' ,. U1 , T , 

, u . .n i ,i • ,.,, § 619J was not applicable. Maples v. 

conservator, his wife, and their children * „ 01 „ ,,. %5l aA Q £, OCA 

were the recipients of loans and gifts from *?oweU, 217 Miss. 322, 64 So. 2d 364 

monies in the conservatorship account, 
without previous court approval. Bryan v. 
Holzer, 589 So. 2d 648 (Miss. 1991). 

RESEARCH REFERENCES 

ALR. Validity and construction of trust (Rev), Conversion, Form 81.3 (complaint, 

provision authorizing trustee to purchase petition, or declaration — for conversion 

trust property. 39 A.L.R.3d 836. — by conservatee against conservator). 

Am Jur. 7 Am. Jur. PI & Pr Forms 

§ 91-7-255. Fiduciary not to transfer negotiable papers. 

No executor, administrator, guardian, receiver, or other fiduciary ap- 
pointed by or acting pursuant to the authority of any chancery court may sell, 
assign, or transfer any note, bill of exchange, bond, stock certificate, or other 
negotiable paper belonging to the estate committed or intrusted to him by such 
court, unless he shall be authorized so to do by an order of the court or 
chancellor, or by the last will and testament of the decedent. Every such 
prohibited sale, assignment, or transfer shall be void, whether the vendee, 
assignee, or transferee shall have had notice or knowledge of the want or lack 
of authority of such fiduciary to sell, assign, or transfer the same or not. 

SOURCES: Codes, 1942, § 620; Laws, 1936, ch. 243. 

Cross References — Additional provisions governing the conduct of executors, 
administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et 
seq. 

JUDICIAL DECISIONS 

1. In general. enacted to protect creditors and those in- 

This section [Code 1942, § 620] was terested in the estate under disposition of 

207 



§ 91-7-257 Trusts and Estates 

the assets by the executor and where that abatement among the beneficiaries is 

there is no claim that the estate is insol- needed, this section is inapplicable, 

vent, or that there are any creditors and Maples v. Howell, 217 Miss. 322, 64 So. 2d 

that all beneficiaries have not received the 364 (1953). 
specific bequests bequeathed to them, or 

§ 91-7-257. Property not to be removed from state. 

An executor or administrator shall not remove any of the property of the 
estate out of this state. If a chancellor or clerk of a chancery court shall be 
satisfied, by petition or otherwise in term time or vacation, that any executor 
or administrator is about to remove the property of the estate out of this state, 
he shall issue a precept to the sheriff of the proper county, commanding him to 
seize the property about to be removed and hold the same until legally disposed 
of; and the letters of such executor or administrator may be revoked, on due 
notice, and administration de bonis non granted to some other person. In case 
of any such removal, suit may be forthwith instituted on the bond by any of the 
distributees or creditors of the estate; and, on satisfactory evidence of the 
removal of the property out of the state, judgment shall be rendered for the full 
value thereof and such other damages as the parties suing shall have 
sustained. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (93); 1857, ch. 60, arts. 128, 
129; 1871, §§ 1186, 1187; 1880, §§ 2010, 2011; 1892, § 1928; Laws, 1906, § 2102; 
Hemingway's 1917, § 1770; Laws, 1930, § 1722; Laws, 1942, § 621. 

Cross References — Suit for devastavit, see § 91-7-313. 
Removal of ward's property by guardian from state, see § 93-13-65. 
Additional provisions governing the conduct of executors, administrators, and other 
fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq. 

§ 91-7-259. Foreign executor or administrator may sue. 

Executors and administrators who have qualified in other states or 
countries may sue in the courts of this state, or may receive without suit and 
give a valid acquittance for any property of, or debts due to, their testators or 
intestates, after filing in the office of the clerk of the chancery court of the 
county where there may be some person indebted to the decedent or having 
some of his effects in possession, a certified copy of the record of the 
appointment and qualification of the executor or administrator according to 
the law of the state or country where he is qualified, and a certificate of the 
officer before whom he is liable to account as such that he is there liable to 
account for the thing sued for or received. 

SOURCES: Codes, 1857, ch. 60, art. 131; 1871, § 1189; 1880, § 2091; 1892, § 1925; 
Laws, 1906, § 2099; Hemingway's 1917, § 1767; Laws, 1930, § 1723; Laws, 
1942, § 622. 

Cross References — Venue of actions against nonresident executors, see § 11-11-9. 
Recording of foreign wills, see § 91-7-33. 

208 



Executors and Administrators § 91-7-261 

Revocation of orders testamentary or letters of administration of nonresident, see 
§ 91-7-89. 

Suits against nonresident fiduciary, see § 91-7-313. 
Suits by nonresident guardians, see § 93-13-183. 

JUDICIAL DECISIONS 

1. In general. letters. Gulf, M. & N.R. Co. v. Wood, 164 

Failure to comply with this section Miss. 765, 146 So. 298 (1933), motion 

[Code 1942, § 622] is ground for dismiss- granted, 147 So. 652, (Miss. 1933), cert, 

ing a suit brought by a foreign adminis- denied, 289 U.S. 759, 53 S. Ct. 791, 77 L. 

trator. Davis v. Meridian & B.R. Co., 248 Ed. 1502 (1933). 

Miss. 707, 161 So. 2d 171 (1964). Payment of debt to foreign administra- 
Qualification by a former administrator tor no defense to suit by heirs unless 
after expiration of the time within which certified copy of appointment filed. Rich- 
suit for wrongful death must be brought, ardson v. Neblett, 122 Miss. 723, 84 So. 
is ineffective to enable him to maintain a 695, 10 A.L.R. 272 (1920). 
suit brought within such time. Davis v. Defendant paying money belonging to 
Meridian & B.R. Co., 248 Miss. 707, 161 decedent to foreign administrator not 
So. 2d 171 (1964). qualified in this state, was liable to local 
An administratrix lawfully appointed in administrator for the amount although 2 
another state could sue in state for em- years later proper certificate was filed, 
ployee's death under Federal Employers' City Sav. & Trust Co. v. Branchieri, 111 
Liability Act without taking out ancillary Miss. 774, 72 So. 196 (1916). 

§ 91-7-261. Procedures for insolvent estates. 

The executor or administrator shall take proper steps speedily to ascertain 
whether the estate be solvent or insolvent. If both the real and personal estate 
be insufficient to pay the debts of the deceased, he shall exhibit to the court a 
true account of all the personal estate, assets of every description, the land of 
the deceased, and all the debts due from the deceased; and if it appear to the 
court that the estate is insolvent, it shall make an order for the sale of all the 
property. The proceeds of such sale and all other assets shall be equally 
distributed among all the creditors whose claims shall be duly filed and 
established, in proportion to the sums due and owing to them respectively, the 
expenses of the last sickness, the funeral, and the administration, including 
commissions, being first paid. Before any decree for sale is made, the devisees 
or heirs shall be made parties to the proceeding. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (103); 1857, ch. 60, art. 98; 
1871, § 1158; 1880, § 2054; 1892, § 1939; Laws, 1906, § 2113; Hemingway's 
1917, § 1781; Laws, 1930, § 1724; Laws, 1942, § 623. 

Cross References — Reports of insolvency by tax collector, see §§ 27-49-1 et seq. 
Rights of administrator de bonis non in regard to insolvent estates, see § 91-7-71. 
Probate of claims, see §§ 91-7-149 et seq. 

JUDICIAL DECISIONS 

1. In general. 1. In general. 

2. Expenses of last illness and funeral. A year's allowance to a widow and chil- 

209 



§ 91-7-263 Trusts and Estates 

dren in insolvent estates is a claim of next Where estate was insolvent, rent due 

priority, is to be paid before creditors, and landlord for store occupied by decedent 

such allowance may be paid out of exempt before death, while claim superior to that 

personal property, in cases where the ex- of general creditors, was not preferred 

empt property is disposed of by the will of over claims for expenses of last illness, 

a testator; in cases of intestacy, it de- funeral, and administration, where ad- 

scends as provided by statute, and, where ministrator sold goods in store building 

administration is not necessary, is not under court order. Walker v. First Nat'l 

subject to administrative expenses. Mills Bank, 168 Miss. 487, 151 So. 740 (1934). 

v. Mills, 279 So. 2d 917 (Miss. 1973). Expenses of last illness and funeral 

Duty of administrator to collect debts of expenses constitute preference claim over 

insolvent estate without order of court, enrolled judgment upon which execution 

McGraw v. Robinson Mercantile Co., 95 has not been issued and levied - Dabney v. 

Miss. 828, 49 So. 260 (1909). Continental Jewelry Co., 163 Miss. 1, 140 

So. 338 (1932). 

2. Expenses of last illness and funeral. Claim for expenses of funeral and last 

If estate be insolvent, expenses of last sickness not filed for examination pursu- 

illness and funeral are preferred, but in ant to administrator's notice, though pref- 

determining solvency, exempt property is erence claims, not allowed except out of 

not considered. De Baum v. Hulett Under- surplus left after payment of filed claims, 

taking Co., 169 Miss. 488, 153 So. 513 Merchants' & Farmers' Bank v. Kelleher, 

(1934). 119 Miss. 232, 80 So. 697 (1919). 

RESEARCH REFERENCES 

ALR. Amount of funeral expenses al- 10 Am. Jur. PI & Pr Forms (Rev), Ex- 

lowable against decedent's estate. 4 ecutors and Administrators, Forms 1401 

A.L.R.2d 995. et seq. (insolvent estates). 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 

Administrators §§ 832 et seq. trators §§ 693 et seq. 

§ 91-7-263. Creditor may institute insolvency proceedings. 

Any creditor of the decedent may represent to the court that the estate is 
insolvent, and thereupon the executor or administrator and heirs or devisees 
shall be summoned to answer whether or not it be insolvent. If it shall be found 
so, like proceedings shall be had as when an estate is represented to be 
insolvent by the executor or administrator. 

SOURCES: Codes, 1880, § 2055; 1892, § 1940; Laws, 1906, § 2114; Hemingway's 
1917, § 1782; Laws, 1930, § 1725; Laws, 1942, § 624. 



§ 91-7-265. Decree of insolvency after all property sold. 

Where an estate is found to be insolvent after a sale of all the property, real 
and personal, it may be decreed to be insolvent and be proceeded with 
accordingly. 

SOURCES: Codes, 1880, § 2058; 1892, § 1941; Laws, 1906, § 2115; Hemingway's 
1917, § 1783; Laws, 1930, § 1726; Laws, 1942, § 625. 



210 



Executors and Administrators § 91-7-269 

§ 91-7-267. Publication and claims presented in insolvent 
estate. 

If an estate be declared insolvent after the executor or administrator has 
made publication to the creditors to present their claims and have them 
probated and registered, another publication to present claims shall not be 
necessary. If an estate be declared insolvent before the executor or adminis- 
trator has made such publication, the court shall order the executor or 
administrator to make publication, requiring the creditors to present their 
claims within ninety (90) days and have them probated and registered. Any 
creditor who shall not register his claim by the day stated in the publication 
shall be forever barred. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 21 (5); 1857, ch. 60, art. 101; 
1871, § 1161; 1880, § 2059; 1892, § 1942; Laws, 1906, § 2116; Hemingway's 
1917, § 1784; Laws, 1930, § 1727; Laws, 1942, § 626; Laws, 1975, ch. 373, § 8, 
eff from and after January 1, 1976. 

Cross References — Notice to creditors of estate, see § 91-7-145. 
Probate of claims against estate, see §§ 91-7-149 et seq. 

§ 91-7-269. Filing, examination, and adjudication of claims in 
insolvent estate. 

When the time for probating and registering claims has elapsed, the court 
shall cause notice to be inserted for three successive weeks in some newspaper 
published in the county that at a time fixed the claims will be taken up for 
examination and adjudication by the court or by the clerk in vacation, as the 
order may designate, that all claims not required by law to be probated and 
registered must be filed with the clerk by the day named in the notice, and that 
all creditors may attend. At the time appointed the court shall examine into the 
validity of each claim which has been probated and registered and such other 
claims as may have been filed with the clerk. The executor or administrator or 
any creditor may object to any claim, and the court shall hear evidence in 
support of the objection, shall allow any claim that should be allowed, and shall 
reject in whole or in part any which is in whole or in part not well founded. It 
shall not be necessary for any creditor to refile with the clerk any claim which 
has been duly probated and registered within the time and in the manner 
required by law. All other claims, unless filed with the clerk by the day named 
in the notice, shall not be allowed; but lawful claims, not required to be 
probated and registered, which are not filed with the clerk by the day named 
in the notice shall not be barred as to any surplus that remains after paying in 
full all claims allowed by the court at the examination and adjudication named 
in the notice. Provided, however, that in cases where the executor or admin- 
istrator shall have, prior to the adjudication of insolvency, paid any claim or 
claims, whether probated and registered or not, such executor or administrator 
shall have the right by the day named in the notice, to file with the clerk a 
verified itemized statement of the amount which has been paid thereon, and 

211 



§ 91-7-271 Trusts and Estates 

obtain allowance therefor in the same amount to which the creditor or 
creditors, whose claim or claims had been so paid, would have been entitled 
had such creditor filed the claim. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 21 (5); 1857, ch. 60, art. 101; 
1871, § 1161; 1880, § 2059; 1892, § 1943; Laws, 1906, § 2117; Hemingway's 
1917, § 1785; Laws, 1930, § 1728; Laws, 1942, § 627; Laws, 1926, ch. 146; 
Laws, 1936, ch. 242. 

Cross References — Register of claims to be maintained by chancery clerk, see 
§ 9-5-173. 
Docketing proceedings in chancery court, see §§ 9-5-205, 9-5-215. 
Balance of mutual dealings on death of one party, see § 11-7-67. 

JUDICIAL DECISIONS 

1. In general. for which claim is allowed, if allowed, 

Decree allowing or disallowing con- would be erroneous. Trippe v. 

tested claim against decedent's estate can O'Cavanagh, 203 Miss. 537, 36 So. 2d 166 

be rendered only by chancellor having (1948). 

jurisdiction of estate being administered. Under this section [Code 1942, § 627] 

Trippe v. O'Cavanagh, 203 Miss. 537, 36 claims must be refiled with clerk of chan- 

So. 2d 166 (1948). cerv CO urt for adjudication; judgment as to 

In contest of claim against decedent's priority of claim cannot be collaterally 

estate, only decree allowing or disallowing attacked. Maxey v. Goolsby, 133 Miss. 554, 

claim can be rendered, and monetary gg g 99 Q923) 

judgment against administrator for sum 

RESEARCH REFERENCES 

ALR. Exclusiveness of grounds enu- priority on distribution to claims for 

merated in statute providing, under spec- wages of servants, employees, or the like, 

ified circumstances, extension of time for 52 A.L.R.3d 940. 

filing claims against decedent's estate. 57 Am Jur. 31 Am. Jur. 2d, Executors and 

A.L.R.2d 1304. Administrators §§ 832 et seq. 

Appealability of order, of court process- 10 p^ Jur P1 & Pr Forms (Rev)) Ex _ 

ing probate jurisdiction court order, allow- ecutors and Administrators, Forms 1411 

ing or denying tardy presentation of claim et seq (set tlement of accounts and distri- 

to personal representative. 66 A.L.R.2d bution of insolvent estate). 

Executors and administrators: con- 
struction of statutory provisions giving 



CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 693 et seq. 



§ 91-7-271. Distribution of assets in insolvent estate. 

When the claims are established and the amount of assets ascertained, the 
court shall adjudge the pro rata share of each creditor, deducting first the 
preference claims and deducting from debts not due the legal interest from the 
time of payment up to the time of their maturity; and the executor or 
administrator shall distribute all money amongst the creditors, in proportion 
to their demands. A creditor whose pro rata share has been so adjudged, after 
ten days from the date of the decree ascertaining his share, the same not 
having been paid, may have execution against the executor or administrator 

212 



Executors and Administrators § 91-7-275 

and the sureties on his bond for such sum as may be due him, and costs of 
execution. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (103); 1857, ch. 60, art. 102; 
1871, § 1162; 1880, § 2060; 1892, § 1944; Laws, 1906, § 2118; Hemingway's 
1917, § 1786; Laws, 1930, § 1729; Laws, 1942, § 628. 

JUDICIAL DECISIONS 

1. In general. An attorney employed by some of the 
Representative of insolvent estate may creditors of an insolvent estate who real- 
in proceeding before chancellor adjudicat- izes by his services a fund for distribution 
ing claims of creditors set up bar of statute among all the creditors cannot have the 
requiring action on claims against dece- fund charged with his fees, but must look 
dent to be brought within 4 years from alone to those who employed him for corn- 
grant of letters. Rogers v. Rosenstock, 117 pensation. Rives v. Patty, 74 Miss. 381, 20 
Miss. 144, 77 So. 958 (1918). So. 862, 60 Am. St. R. 510 (1896). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and et seq. (judgment or decree of distribution 

Administrators § 833. of insolvent estate). 

10 Am. Jur. PI & Pr Forms (Rev), Ex- CJS. 34 C.J.S., Executors and Adminis- 

ecutors and Administrators, Forms 1420 trators §§ 704 et seq. 

§ 91-7-273. Suits not to abate on insolvency. 

A suit or action which may be pending against an executor or administra- 
tor at the time the estate is reported insolvent shall not, on that account, abate, 
but may be prosecuted to final judgment. The judgment shall constitute a 
claim against the estate, if probated and registered as other claims, but shall 
not have priority over general creditors. If any such suit be undetermined 
when the claims are to be examined and allowed by the court and the 
distributive shares ascertained and declared, such examination and allowance 
may be postponed until the suit be finally determined, or the validity of the 
claims sued on may be determined by the chancery court. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 2 (1); 1857, ch. 60, art. 103; 
1871, § 1163; 1880, § 2061; 1892, § 1945; Laws, 1906, § 2119; Hemingway's 
1917, § 1787; Laws, 1930, § 1730; Laws, 1942, § 629. 

§ 91-7-275. Suit not allowed after decree of insolvency. 

A suit or action shall not be brought against an executor or administrator 
on any claim against the decedent after the estate has been declared insolvent. 

SOURCES: Codes, 1880, § 2062; 1892, § 1946; Laws, 1906, § 2120; Hemingway's 
1917, § 1788; Laws, 1930, § 1731; Laws, 1942, § 630. 



213 



§ 91-7-277 Trusts and Estates 

JUDICIAL DECISIONS 

1. In general. negligence of his decedent, notwithstand- 

This provision bars only actions on con- ing the estate has been declared insolvent. 

tract, not actions in tort. Bullock v. Young, Bullock v. Young, 243 Miss. 146, 137 So. 2d 

243 Miss. 146, 137 So. 2d 777 (1962). 777 (1962). 
A personal representative is liable to 

suit on a claim arising from the alleged 

§ 91-7-277. Annual accounts. 

Every executor or administrator, at least once in each year or oftener if 
required by the court, shall present under oath an account of his administra- 
tion, showing the disbursements, every item of which and the amount thereof 
to be distinctly stated and supported by legal voucher, and it shall also show 
the receipts of money and from what sources. The failure to account annually 
shall be a breach of the administration bond, for which it may be put in suit, 
or the executor or administrator may be removed; but the court may, on 
application and on cause shown, extend the time for accounting. In the event 
that the account shall be presented by a federally regulated bank, thrift or 
trust company, and such account or the petition for the approval of same shall 
contain a statement under oath by an officer of said bank, thrift or trust 
company showing that the vouchers covering the disbursements in the account 
presented are on file with said bank, thrift or trust company, such bank, thrift 
or trust company shall not be required to file vouchers. Provided, however, that 
said bank, thrift or trust company shall produce said vouchers for inspection of 
any interested party or his or her attorney at any time during legal banking 
hours at the office of said bank, thrift or trust company and, provided further, 
that the court on its own motion or on the motion of any interested party may 
require that said vouchers be produced and inspected at the time of hearing of 
any objections that may be filed to any annual accounts of any executors or 
administrators. The court shall examine all such accounts and the vouchers 
required to be filed or produced for inspection, and if satisfied that the account 
is just and true, it shall decree the same approved and allowed as a correct 
annual settlement. If the decree allowing and approving the account of any 
executor or administrator shall affirmatively recite that the vouchers to 
support the disbursements shown in the account were exhibited to and 
approved by the court, it shall not be necessary to file the vouchers in the 
cause, but they shall be preserved by the executor or administrator until after 
the final accounting has been approved. 

Notwithstanding the foregoing, any record, voucher, claim, check, draft, 
receipt, writing, account, statement, note or other evidence which may be 
furnished, filed, probated, presented or produced, or required to be produced, 
by a federally regulated bank, thrift or trust company shall be deemed to be an 
original admitted, furnished, filed, probated, presented, or produced for all 
purposes and with the same effect as the original, if such financial institution 
produces a copy of such evidence from a format of storage commonly used by 

214 



Executors and Administrators § 91-7-279 

financial institutions, whether electronic, imaged, magnetic, microphoto- 
graphic or otherwise. 

SOURCES: Codes, 1857, ch. 60, art. 104; 1871, § 1164; 1880, § 2067; 1892, § 1947; 
Laws, 1906, § 2121; Hemingway's 1917, § 1789; Laws, 1930, § 1732; Laws, 
1942, § 631; Laws, 1960, ch. 217, § 5; Laws, 1968, ch. 306, § 1; Laws, 1996, ch. 
400, § 43, eff from and after passage (approved March 19, 1996). 

Editor's Note — Section 81-1-57 provides that wherever the words "Department of 
bank supervision", or "department" when referring to the department of bank super- 
vision, appear they shall be construed to mean the department of banking and 
consumer finance. 

Cross References — Duty of chancery clerk to keep record of accounts allowed, see 
§ 9-5-137. 

Payment of inheritance tax before settlement of executor's accounts, see § 27-9-41. 

Final accounts, see § 91-7-291. 

Annual accounts by guardians, see § 93-13-67. 

Provision that accounts be personally signed and sworn to by executor or adminis- 
trator, see Miss. Uniform Chancery Court Rule 6.14. 

JUDICIAL DECISIONS 

1. In general. Statutory requirement that executor 
The Chancellor properly removed an file vouchers for disbursements for annual 
administrator under § 91-7-277, where accounts mandatory. Ridgeway v. Jones, 
the administrator failed to file sufficiently 125 Miss. 22, 87 So. 461 (1921). 
specific accountings and inventories. Executor may not pay claims not pro- 
Kelly v. Shoemake, 460 So. 2d 811 (Miss, bated and allowed. Ridgeway v. Jones, 125 
1984). Miss. 22, 87 So. 461 (1921). 

The requirement of § 91-7-277 that an- Expenditures for funeral expenses and 

nual accountings be made is mandatory monumen t may be allowed if reasonable, 

and not simply advisory, and the fact that Ridgewa v . Jones 125 Miss. 22, 87 So. 



co-executors' failure to make annual ac- 
countings resulted in no loss to the estate 
was of no consequence. Abernathy v. 
Smith, 458 So. 2d 691 (Miss. 1984). 



461 (1921). 



RESEARCH REFERENCES 

ALR. Application of dead man's statute Law Reviews. Symposium on Missis- 

in proceeding involving account of per- sippi Rules of Civil Procedure: Pretrial 

sonal representative. 2 A.L.R.2d 349. Procedure, Applicability of Rules, and Ju- 

Am Jur. 31 Am. Jur. 2d, Executors and risdiction and Venue — Rules 16, 81 and 

Administrators § 903. 82. 52 Miss. L. J. 105, March, 1982. 

CJS. 34 C.J.S., Executors and Adminis- 
trators § 870. 

§ 91-7-279. Requirements of vouchers. 

In every case where it is required that vouchers for disbursements in any 
annual or final account be filed, each such voucher shall be written upon, or 
affixed to, not less paper than a one half (V^) page of legal cap, or a voucher may 
be an ordinary bank check of such size as is in general use. Each shall be 
entitled of the cause and numbered with the number of the case, and each shall 

215 



§ 91-7-281 Trusts and Estates 

be filed by the clerk. The clerk shall not receive and file any voucher unless it 
conform to, or is made by him to conform to, this section; and he shall fasten 
together all the vouchers belonging to the same account in their numerical 
order and so arrange them that each can be easily found and read. 

SOURCES: Codes, 1892, § 1948; Laws, 1906, § 2122; Hemingway's 1917, § 1790; 
Laws, 1930, § 1733; Laws, 1942, § 632; Laws, 1960, ch. 217, § 6; Laws, 1966, 
ch. 324, § 1, eff from and after passage (approved March 2, 1966). 

Cross References — Vouchers in guardianship accounts, see § 93-13-73. 
What vouchers must show, see Miss. Uniform Chancery Court Rule 6.06. 

§ 91-7-281. Attorney's fees allowable. 

In annual and final settlements, the executor, administrator, or guardian 
shall be entitled to credit for such reasonable sums as he may have paid for the 
services of an attorney in the management or in behalf of the estate, if the 
court be of the opinion that the services were proper and rendered in good 
faith. Where the executor, administrator, or guardian acts also as attorney, the 
court may allow such executor, administrator, or guardian credit for his 
reasonable compensation as attorney in lieu of his compensation as executor, 
administrator, or guardian. 

SOURCES: Codes, 1892, § 1957; Laws, 1906, § 2131; Hemingway's 1917, § 1799; 
Laws, 1930, § 1734; Laws, 1942, § 633; Laws, 1882, p. 113; Laws, 1928, ch. 
153. 

Cross References — Attorney's fees in guardianship proceedings, see § 93-13-79. 
Petitions for allowance of attorney's fees, see Miss. Uniform Chancery Court Rule 
6.13. 

JUDICIAL DECISIONS 

1. In general. dent's estate, and since such fees are in- 

2. Amount of fees. curred after testator's death, they do not 

3. Executor, administrator, or guardian have to be probated; the testator may 

acting as attorney. waive the testatrix's duty to account, but 

upon a charge of the devisees of misman- 

1. In general. agement by the executrix, the chancery 

Attorney's fees are not authorized court may properly require an accounting, 

where services are rendered for sole ben- with the result that an executrix may act 

efit of individual interested in estate; ad- at her peril in paying attorneys' fees with- 

ministratrix should not have been allowed out court approval. Harper v. Harper, 491 

attorney's fees, to be paid out of estate, So. 2d 189 (Miss. 1986). 

where she was the only creditor of estate Although attorney's fees are the per- 

and record revealed that only pleading for sonal obligation of the administrator or 

motion filed by her not in furtherance of executor, they may be paid out of the 

recovering her claim against estate was estate as administration expenses. Scott v. 

payment of outstanding funeral bill. Hollingsworth, 487 So. 2d 811 (Miss. 

Braxton v. Johnson, 514 So. 2d 1232, 84 1986). 

A.L.R.4th 255 (Miss. 1987). The supreme court would not require an 

The payment of attorneys' fees is an estate to pay for legal services rendered by 

expense of the administration of a dece- an attorney in the interest of the executrix 

216 



Executors and Administrators 



§ 91-7-281 



in her individual capacity and which was 
of no benefit to the estate itself. Rufiin v. 
Burkhalter, 238 Miss. 358, 118 So. 2d 357 
(1960). 

Attorney's fees in the management of 
statutory estates are not a charge upon 
the estate itself, but are personal obliga- 
tions of the administrator or executor or 
guardian, and an allowance for attorney's 
fees must be done on the request or peti- 
tion of the administrator or executor or 
guardian and not on the direct petition of 
the attorney himself. Hutton v. Gwin, 188 
Miss. 763, 195 So. 486 (1940). 

Where the testator prescribes that his 
wife should be the guardian of the person 
and estate of his minor son until he should 
become twenty-one years of age and 
should give a bond as guardian effective 
during that time, and that after the minor 
had reached his majority the guardian 
should thereupon become trustee and 
should furnish bond as such trustee until 
the son should attain thirty-one years old, 
at which time the balance of the estate 
was to be distributed, a period of minority 
constituted a statutory guardianship and 
attorney's fees for services rendered dur- 
ing that period could not be allowed on the 
direct petition of the attorney himself. 
Hutton v. Gwin, 188 Miss. 763, 195 So. 
486 (1940). 

Attorneys' fees incurred by the personal 
representative in the administration of an 
estate in his custody are his personal 
obligations, for which he may be reim- 
bursed if the court be of the opinion that 
the services were necessary and rendered 
in good faith. Clarksdale Hosp. v. Wallis, 
187 Miss. 834, 193 So. 627 (1940). 

Allowance for attorneys' fees is unau- 
thorized where services are rendered for 
sole benefit of an individual, or group of 
individuals, interested in the estate, as 
against the others interested. Clarksdale 
Hosp. v. Wallis, 187 Miss. 834, 193 So. 627 
(1940). 

Where hospital's claim to legacy was 
against the interest of all the other lega- 
tees and devisees under a will, and its 
successful termination resulted in de- 
creasing their claims, the hospital was not 
entitled to reasonable attorneys' fees in- 
curred in defending its rights to the leg- 
acy, notwithstanding that the decision as 



to the validity of the bequest involved a 
construction of the will which was of in- 
terest to all concerned. Clarksdale Hosp. 
v. Wallis, 187 Miss. 834, 193 So. 627 
(1940). 

Attorney's fees held personal debts of 
administrator, and not of estate. Reedy v. 
Allen, 181 Miss. 471, 179 So. 569 (1938). 

Ordinarily administrator is personally 
liable to attorney, and entitled, in connec- 
tion with annual and final settlement, to 
credit for reasonable attorney's services 
on behalf of estate if court thinks they 
were proper and in good faith. Reedy v. 
Allen, 181 Miss. 471, 179 So. 569 (1938). 

Chancellor had no authority to allow 
attorney's fees where there was no evi- 
dence of employment contract. Reedy v. 
Allen, 181 Miss. 471, 179 So. 569 (1938). 

Order allowing attorney's fee in ex parte 
proceeding for services rendered predeces- 
sor of present administratrix and trustee 
could not be sustained on ground admin- 
istratrix should have objected to filing 
petition, where neither petition nor proof 
showed any power in administratrix or 
trustee to bind estate, and it was not 
shown that predecessor was insolvent or 
out of state. Reedy v. Allen, 181 Miss. 471, 
179 So. 569 (1938). 

Where will empowered executor and 
trustee to employ persons necessary to 
manage trust estate, attorney's fees could 
be made charge against trust estate. Gwin 
v. Fountain, 159 Miss. 619, 126 So. 18 
(1930), suggestion of error sustained in 
part, 159 Miss. 619, 132 So. 559 (1930). 

Ordinarily debts contracted by adminis- 
trator are only personal obligations, and 
this is especially true of attorneys' fees. 
Howell v. Myer, 105 Miss. 771, 63 So. 233 
(1913). 

Statute is intended to prevent necessity 
of suit by attorney against administrator 
to establish claim for services to estate; 
statute has no reference to claim which 
attorney seeks to enforce over administra- 
tor's protest. Murphy v. Harris, 93 Miss. 
286, 48 So. 232 (1909). 

The funeral expenses of decedent and 
an administrator's attorney's fees are not 
debts against him, and the administrator 
may pay them with the proceeds of a life 
insurance policy which is exempt from 
liability for his debts. Dobbs v. Chandler, 
84 Miss. 372, 36 So. 388 (1904). 



217 



§ 91-7-281 



Trusts and Estates 



2. Amount of fees. 

The chancellor did not abuse his discre- 
tion by not allowing additional attorneys 
fees where the executrix was found in civil 
and criminal contempt for failing to abide 
by a previous court order and was subse- 
quently jailed, and where the executrix 
received legal advice in connection with 
the contempt action from the same coun- 
sel whom she retained on behalf of the 
estate and thus did not have the purpose 
of benefiting the estate. Strait v. Collins, 
742 So. 2d 147 (Miss. Ct. App. 1999). 

Lawyer should submit time sheet to 
chancellor listing hours spent serving es- 
tate and fee normally charged for such 
service when pursuing attorneys fees un- 
der § 91-7-281; attorney's fees are not 
recoverable from estate for services per- 
formed before appointment of administra- 
tor. Braxton v. Johnson, 514 So. 2d 1232, 
84 A.L.R.4th 255 (Miss. 1987). 

The chancellor did not abuse his discre- 
tion in allowing the payment of attorney's 
fees for services rendered prior to the date 
the decedent's estate could and should 
have been closed, nor in surcharging the 
executrix for the balance of the legal fees 
incurred after that date. Harper v. Harper, 
491 So. 2d 189 (Miss. 1986). 

Award of $1500 as fees for attorney 
retained by an estate valued in excess of 
$229,000 was not so inadequate as to 
amount to an abuse of the chancellor's 
discretion. Scott v. Hollingsworth, 487 So. 
2d 811 (Miss. 1986). 

Where the proper management, han- 
dling, and preservation of funds of a dece- 
dent's estate in the sum of $13,750, de- 
rived from condemnation proceedings, 
required the executor and life tenant to 
seek the aid of the chancery court and to 
submit the matter to its jurisdiction for 
proper decrees in regard to the disposition 
of the funds, the allowance of an attor- 
ney's fee in the sum of $1,000 was justi- 
fied. Bradley v. Bradley, 185 So. 2d 655 
(Miss. 1966). 

Allowance of compensation and attor- 
ney's fees to an administrator within the 
limits prescribed by statute is a matter 
addressed to the sound discretion of the 
chancery court, and the supreme court 
will not interfere with the exercise of that 
discretion except in cases of its manifest 



and flagrant abuse. Schwander v. Rubel, 
221 Miss. 875, 75 So. 2d 45 (1954). 

Chancery court's allowance for attor- 
ney's fees which was slightly less than 
four per cent of estate, held not abuse of 
discretion. King v. Wade, 175 Miss. 72, 166 
So. 327 (1936). 

Instead of paying attorneys and asking 
credit therefor, executrix may ask court to 
fix fees. Brown v. Franklin, 166 Miss. 899, 
145 So. 752 (1933). 

Amount allowable as attorney's fee for 
services rendered in administration of es- 
tate rests in sound discretion of chancery 
court. Brown v. Franklin, 166 Miss. 899, 
145 So. 752 (1933). 

Time is not the only element involved in 
fixing attorney's fee for services rendered 
executrix, since skill, responsibility, and 
amount involved must also be considered. 
Brown v. Franklin, 166 Miss. 899, 145 So. 
752 (1933). 

Opinions of attorneys concerning pro- 
priety of fee for services rendered to exec- 
utrix were not binding on chancery court, 
which might act on its own knowledge. 
Brown v. Franklin, 166 Miss. 899, 145 So. 
752 (1933). 

Allowance of attorney's fee of $750 for 
services rendered executrix in estate 
amounting to $29,104.95, where litigation 
was carried to supreme court, held not 
abuse of discretion. Brown v. Franklin, 
166 Miss. 899, 145 So. 752 (1933). 

3. Executor, administrator, or guard- 
ian acting as attorney. 

As long as no duplication of services is 
shown, an executor is not prevented from 
seeking payment for services rendered 
purely in his fiduciary capacity that may 
not necessarily involve legal work, while, 
at the same time, seeking additional com- 
pensation for other work of a purely legal 
nature in lieu of payment for those other 
discrete services as the fiduciary. Wells v. 
Evans, 740 So. 2d 332 (Miss. Ct. App. 
1999). 

There is no prohibition in this section 
that would prevent a fiduciary who is also 
an attorney from petitioning for some part 
of his itemized services to be paid under 
§ 91-7-299, where his right to compensa- 
tion would not necessarily be commensu- 
rate with prevailing legal fees; nor is there 
a prohibition for that same fiduciary, as to 



218 



Executors and Administrators § 91-7-283 

those separately identified services that paid for those particular services under 

were unquestionably performed in his ca- § 91-7-299. Wells v. Evans, 740 So. 2d 332 

pacity as an attorney, seeking compensa- (Miss. Ct. App. 1999). 
tion under this section, in lieu of being 

RESEARCH REFERENCES 

ALR. Allowance of fees for guardian ad without consent of executor or adminis- 

litem appointed for infant defendant, as trator. 83 A.L.R.3d 1160. 

costs. 30 A.L.R.2d 1148. Award of attorneys' fees out of trust 

Right to allowance out of estate of attor- estate in action by trustee against co- 
neys' fees incurred in attempt to establish trustee. 24 A.L.R.4th 624. 
or defeat will. 40 A.L.R.2d 1407. Attorneys' fees: cost of services provided 

Right of executor or administrator to by para ieg a ls or the like as compensable 

extra compensation for legal services ren- element of award in state court 73 

dered by him. 65 A.L.R.2d 809. ALR 4th 938 

Personal liability of executor or admin- ^ Jur . nAm Jur 2d ExeC utors and 
istrator for fees of attorney emp oyed by Administrators §§ 428> 430 . 
him tor the benefit 01 the estate. 13 ._. , m -n n /^ x th 
A L R 3d 518 ^ nc1, r " Forms (Rev), Ex- 
Amount of attorneys' compensation in ecutors and Administrators Forms 1451 
matters involving guardianship and et seq. (compensation and allowances), 
trusts. 57 A.L.R.3d 550. C JS - 34 C.J.S., Executors and Admims- 

Amount of attorneys' compensation in trators § 896. 

proceedings involving wills and adminis- Law Reviews. 1978 Mississippi Su- 

tration of decedents' estates. 58 A.L.R.3d preme Court Review: Torts. 50 Miss. L. J. 

317. 137, March, 1979. 

Liability of estate for legal services of 
attorney employed by estate attorney 

§ 91-7-283. Defaulters to be listed and cited. 

Unless the court or chancellor has, by order entered on the minutes, 
designated another annual term for that purpose, it shall be the duty of the 
clerk at the first term of the chancery court of his county in each year to make 
up a complete and impartial list of all executors and administrators and 
guardians who have failed to present and settle their accounts within the year 
preceding. In each and every such case, the clerk shall enter the same on the 
motion docket and thereby move the court for an order on the defaulter; and 
the court shall, in each and every such case, order a citation to be issued for the 
defaulter and for the surety or sureties on his bond, returnable forthwith or at 
the next term of court. On the return thereof, unless sufficient cause be shown 
for such failure and that the same was not the result of negligence or 
contumacy, the court shall proceed against the delinquent executor, adminis- 
trator, or guardian for a contempt, and may also remove him from office. If 
there be no such defaulter, the clerk shall so report and obtain an order reciting 
his said report to that effect, which order shall be entered on the minutes of the 
term. If there be any defaulter and the clerk shall fail to fully prepare the list 
and to enter the motions herein required, he shall not be entitled to any 
allowance for attendance on the term nor to any annual compensation for ex 
officio services to the court. Any allowance by the court contrary to the terms 

219 



§ 91-7-285 Trusts and Estates 

of this section may nevertheless be recovered from the said clerk on his bond 
by the state tax commission, or by any other office similarly empowered, for the 
benefit of the county treasury; in addition to which, the clerk shall be liable on 
his bond at the suit of any party in interest who has been damaged in any case 
by the said failure of the clerk. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (94); 1857, ch. 60, art. 105; 
1871, § 1165; 1880, § 2068; 1892, § 1949; Laws, 1906, § 2123; Hemingway's 
1917, § 1791; Laws, 1930, § 1735; Laws, 1942, § 634. 

Cross References — Docketing in matters testamentary, see § 9-5-203. 

JUDICIAL DECISIONS 

1. In general. trustee on its own motion, unless palpably 

Supreme court will not interfere with unjust. Nutt v. State, 96 Miss. 473, 51 So. 
action of chancery court in removing 401 (1910). 

§ 91-7-285. Process for derelict fiduciary. 

Whenever it shall appear of record, or otherwise, that any executor, 
administrator, guardian, receiver, or fiduciary appointed by any chancery court 
is derelict in the performance of any duty required of him by law or the orders 
of the court or chancellor, or is liable to be punished or removed for any cause 
prescribed by law, then such court or the chancellor in vacation may, on the 
application of any interested party or of his or its own motion, order a citation 
for such executor, administrator, guardian, receiver, or other fiduciary, as the 
case may be, to be issued by the clerk of the court in which such cause or matter 
is pending, returnable forthwith or at such time and place, in term time or 
vacation, as may be specified in such order, to appear and show cause why he 
should not be removed or punished for contempt, either or both, as may be 
directed in such order. The citation shall be directed to the sheriff of the county 
of the residence of such fiduciary, if known to the clerk; otherwise, it shall be 
directed to the sheriff of the county where such matter or cause is pending, and 
shall be executed without advance payment of fees. 

SOURCES: Codes, 1942, § 635; Laws, 1936, ch. 239. 

JUDICIAL DECISIONS 

1. In general. formed a sufficient basis for the chancellor 

2. Notice. to remove him, under § 91-7-285, as exec- 



utor of the estate. Kelly v. Shoemake, 460 
So. 2d 811 (Miss. 1984). 



1. In general. 

An administrator's failure to file suffi- 
ciently specific accountings and invento- 2. Notice. 

ries and his admission that he had spent A conservator is entitled to notice and a 

or lent large sums of funds taken from the hearing prior to his removal. Jackson v. 

estate for which he was unable to account Jackson, 732 So. 2d 916 (Miss. 1999). 



220 



Executors and Administrators § 91-7-291 

§ 91-7-287. Publication of process for defaulter. 

If the citation be returned unexecuted because such fiduciary cannot be 
found after diligent search by the sheriff to whom it is directed, then the clerk 
shall make and file among the papers in the cause an affidavit stating such 
information as he may have been able to ascertain after diligent inquiry 
concerning the whereabouts and post office address of such fiduciary. If by such 
affidavit it shall appear that the whereabouts of such fiduciary is unknown to 
the clerk or that he is a nonresident of, or absents himself from, this state, then 
the court or chancellor shall make an order directing the issuance and 
publication of an alias citation for such fiduciary to appear and show cause why 
he should not be removed, at a time and place specified therein, not less than 
thirty days from the date of such order. The sheriff of the county where such 
matter or cause is pending shall thereupon make publication of such citation 
by posting a true copy thereof at three public places in his county, one of which 
shall be at the courthouse, not less than twenty-one days before the return day 
thereof, and shall make return of the citation showing such publication and the 
date and places where such copies were posted. If the clerk's affidavit shall 
show the post office address of such fiduciary, then the clerk shall, at the time 
of issuing such alias citation for publication, mail postage prepaid a true copy 
thereof to him at such address and note the fact on his general docket in the 
same manner and with the same effect as in other like cases. On the return of 
such alias citation, executed by publication as aforesaid, the court or chancellor 
shall be as fully empowered to proceed as if such fiduciary had been personally 
served in this state. 

SOURCES: Codes, 1942, § 636; Laws, 1936, ch. 239. 

§ 91-7-289. Hearing for derelict fiduciary. 

If on the return day it shall appear that the citation has been served in this 
state, or publication made in the manner required by Section 91-7-287, the 
court or chancellor may proceed to hear the matter, and may remove or punish 
such fiduciary, either or both, or make such other order therein as may seem 
just and proper; or the court or chancellor may continue the matter for further 
hearing and final determination to such time and place as may be designated 
in the order of continuance. 

SOURCES: Codes, 1942, § 637; Laws, 1936, ch. 239. 

§ 91-7-291. Final accounts. 

When the estate has been administered by payment of the debts and the 
collection of the assets, it shall be the duty of the executor or administrator, 
unless the court or chancellor, on cause shown, shall otherwise order, to make 
and file a final settlement of the administration by making out and presenting 
to the court, under oath, his final account, which shall contain a distinct 
statement of all the balances of the annual accounts, either as debits or credits, 

221 



§ 91-7-291 Trusts and Estates 

all other charges and disbursements supported by legal vouchers, amounts 
received and not contained in any previous annual account, and a statement of 
the kind and condition of all assets in his hands. In the event that the account 
shall be presented by a bank or trust company which is subject to the 
supervision of the department of bank supervision of the State of Mississippi 
or of the comptroller of the currency of the United States and such account, or 
the petition for the approval of same, shall contain a statement under oath by 
an officer of said bank or trust company showing that the vouchers covering the 
disbursements in the account presented are on file with the said bank or trust 
company, such bank or trust company shall not be required to file vouchers. 
Provided, however, that said bank or trust company shall produce said 
vouchers for inspection of any interested party or his or her attorney at any 
time during legal banking hours at the office of said bank or trust company; 
and provided, further, that the court on its own motion, or on the motion of any 
interested party, may require that said vouchers be produced and inspected at 
the time of hearing of any objections that may be filed to any final account. 

SOURCES: Codes, 1857, ch. 60, art. 106; 1871, § 1166; 1880, § 2069; 1892, § 1950; 
Laws, 1906, § 2124; Hemingway's 1917, § 1792; Laws, 1930, § 1736; Laws, 
1942, § 638; Laws, 1960, ch. 217, § 7. 

Editor's Note — Section 81-1-57 provides that wherever the words "Department of 
bank supervision", or "department" when referring to the department of bank super- 
vision, appear they shall be construed to mean the department of banking and 
consumer finance. 

Cross References — Payment of income tax as prerequisite to approval of final 
account, see § 27-7-69. 

Payment of estate taxes as prerequisite to approval of final account, see § 27-9-41. 

Annual accounts, see § 91-7-277. 

Reopening of accounts after final accounting, see § 91-7-309. 

Production of vouchers in guardianship proceedings, see § 93-13-73. 

Requirement that account be personally signed and sworn to by executor or 
administrator, see Miss. Uniform Chancery Court Rule 6.14. 

JUDICIAL DECISIONS 

1. In general. dence heard for the approval thereof, and 

In a proceeding by a widow to reopen where there was no specific charge of 

the estate of her deceased husband more fraud against the executor which would 

than two years after entry of a final decree constitute a bar to the statute of limita- 

on the ground that the final account had tions. Byrd v. Page, 384 So. 2d 1038 (Miss. 

never been filed and that the final decree 1980). 

was therefore a nullity, the trial court Chancellor in vacation may approve ex- 

properly denied the petition where the ecutor's final account. United States Fid. 

transcript was a part of the record and it & Guar. Co. v. State, 110 Miss. 16, 69 So. 

indicated that, although the final account 1007 (1915). 

had not be stamped "Filed" until three Administratrix de bonis non entitled to 

years later, there was no dispute that it allowance for premium on special bond 

had been presented to the court, that it executed to collect money for land sold by 

had been a part of the record on presen- predecessor under order of court. Davis v. 

tation of same, and that the decree had Blumenberg, 107 Miss. 432, 65 So. 503 

been based upon said account and evi- (1914). 

222 



Executors and Administrators 



§ 91-7-293 



In a suit by a distributee to compel an 
accounting by the surviving executor it is 
proper upon the latter's application to 
make a personal representative of the 
deceased executor a party to the proceed- 
ing. Owens v. Owens' Estate, 84 Miss. 673, 
37 So. 149 (1904). 

Where executors deposited money col- 
lected in their own bank, where it re- 
mained for ten years credited to them as 
guardians, when they were not guardians, 
and rendered no accounts for more than 
two years, in the meantime lending money 
to the distributees at interest and selling 



them property, taking interest-bearing 
notes therefor, they are chargeable with 
interest at the legal rate during the time 
the money was in the bank. Owens v. 
Owens' Estate, 84 Miss. 673, 37 So. 149 
(1904). 

Where executors without excuse left 
money due the estate in the hands of the 
debtor for nearly fifteen years, not collect- 
ing it until compelled to do so in a proceed- 
ing for an accounting, they were charge- 
able with interest. Owens v. Owens' 
Estate, 84 Miss. 673, 37 So. 149 (1904). 



RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 

Administrators §§ 878 et seq. trators §§ 810 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1101 
et seq. (final account). 

§ 91-7-293. Names of interested parties to be stated. 

The executor or administrator shall file with his final account a written 
statement, under oath, of the names of the heirs or devisees and legatees of the 
estate, so far as known, specifying particularly which, if any, are under the age 
of twenty-one years, of unsound mind, or convict of felony; the places of 
residence of each and their post-office address if they be nonresidents or, if the 
post-office address be unknown, the statement must aver that diligent inquiry 
has been made to learn the same without avail and giving the names and 
places of residence of the guardians of all who have guardians, so far as known. 

SOURCES: Codes, 1892, § 1951; Laws, 1906, § 2125; Hemingway's 1917, § 1793; 
Laws, 1930, § 1737; Laws, 1942, § 639. 

Cross References — Requirement that account be personally signed and sworn to 
by executor or administrator, see Miss. Uniform Chancery Court Rule 6.14. 

JUDICIAL DECISIONS 



1. In general. 

Administratrix's duty to protect estate 
assets required administratrix to contest 
all claims against estate that may prop- 
erly and in good faith be contested and to 
use reasonable diligence to ascertain po- 
tential heirs, and to file names of heirs in 
final account. Shepherd v. Jones ex rel. 
Jones, 678 So. 2d 660 (Miss. 1996). 

A chancery court did not have jurisdic- 
tion to hear a will contest where the 



executor failed to properly designate the 
beneficiaries as necessary parties, since 
the "interested and necessary parties" 
were not timely noticed and properly 
joined in the lawsuit; the chancellor 
should have joined all necessary and 
proper parties before exercising jurisdic- 
tion. Padron v. Martell, 651 So. 2d 1052 
(Miss. 1995). 

In an action to probate a will, the chan- 
cellor erred in sustaining the executor's 



223 



§ 91-7-295 



Trusts and Estates 



and beneficiaries' motions to dismiss a 
caveat against probate filed by will contes- 
tants on the ground that the will was not 
contested within 2 years as required by 
§ 91-7-23 where the beneficiaries were 
not listed as interested parties on the 
petition to probate the will, since the ben- 
eficiaries were necessary parties entitled 
to notice of the action. Padron v. Martell, 
651 So. 2d 1052 (Miss. 1995). 

An administratrix perpetrated a fraud 
on the court where she intentionally chose 
not to reveal the existence of a potential 
heir to the court, relying on her and her 
attorney's determination that an alleged 
illegitimate daughter of the decedent was 
not an heir, where the administratrix, 
who was the decedent's widow, claimed to 
be the sole heir at law and benefited from 
her silence regarding the existence of the 
illegitimate daughter. Smith ex rel. Young 



v. Estate of King, 579 So. 2d 1250 (Miss. 
1991). 

An administratrix is under an affirma- 
tive duty to disclose to the court the exis- 
tence of known potential heirs and claim- 
ants. Smith ex rel. Young v. Estate of 
King, 501 So. 2d 1120 (Miss. 1987). 

This section [Code 1942, § 639], while it 
prescribed who are necessary parties to 
the final account of an administrator, does 
not preclude as proper parties those hav- 
ing an interest in the net amount to be 
distributed by the administrator. Stone v. 
Townsend, 190 Miss. 547, 1 So. 2d 237 
(1941). 

Judgment creditors of the heirs of an 
intestate were proper parties to a proceed- 
ing involving the final account of the ad- 
ministrator. Stone v. Townsend, 190 Miss. 
547, 1 So. 2d 237 (1941). 



RESEARCH REFERENCES 



Law Reviews. Symposium on Missis- 
sippi Rules of Civil Procedure: Pretrial 
Procedure, Applicability of Rules, and Ju- 



risdiction and Venue — Rules 16, 81 and 
82. 52 Miss. L. J. 105, March, 1982. 



§ 91-7-295. Summons or publication for final account. 

The final account so presented, with the statement as to parties, shall 
remain on file, subject to the inspection of any person interested. Summons 
shall be issued or publication be made for all parties interested, as in other 
suits in the chancery court, to appear at a term of the court, or before the 
chancellor in vacation, not less than thirty (30) days from the service of the 
summons or the completion of the publication, and show cause, if any they can, 
why the final account of the executor, administrator, or guardian should not be 
allowed and approved. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 20 (12); 1857, ch. 60, art. 106; 
1871, § 1167; 1880, § 2069; 1892, § 1952; Laws, 1906, § 2126; Hemingway's 
1917, § 1794; Laws, 1930, § 1738; Laws, 1942, § 640; Laws, 1960, ch. 222. 

JUDICIAL DECISIONS 



1. In general. 

After the final account has been filed, it 
is the administratrix duty to cause sum- 
mons to be issued for all parties interested 
as far as known to her at the hearing on 
the final account. Smith ex rel. Young v. 
Estate of King, 501 So. 2d 1120 (Miss. 
1987). 



A minor seeking to be declared an heir 
of the decedent as an illegitimate daugh- 
ter and to share in the estate should have 
been allowed to amend her complaint to 
allege that the widow and former execu- 
trix knew of the existence of the minor as 
an illegitimate child of the decedent, but 
fraudulently failed to so inform the court, 



224 



Executors and Administrators § 91-7-297 

notwithstanding that the minor's petition It is competent for the parties in inter- 
was filed more than 90 days after the est to waive process and consent to the 
publication of notice to the creditors of the hearing of a final account. Pollock v. Buie, 
estate. Smith ex rel. Young v. Estate of 43 Miss. 140 (1870). 
King, 501 So. 2d 1120 (Miss. 1987). 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and CJS. 34 C.J.S., Executors and Adminis- 
Administrators §§ 868, 869. trators § 800. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1133 
et seq. (notice). 

§ 91-7-297. Hearing and adjudication of final account. 

If process be returned executed, or publication has been made, the court 
shall examine the final account so presented and filed, hear the evidence in 
support of it, and the objections and evidence against it. If the court shall be 
satisfied that the account is correct and supported by legal vouchers where 
required to be filed or produced for inspection, it shall make a final decree of 
approval and allowance, and shall, at the same time, order the executor or 
administrator to make distribution of the property in his hands. In proceedings 
for a final settlement, the court may allow any party interested to surcharge 
and falsify any annual or partial settlement of the executor or administrator. 

SOURCES: Codes, 1857, ch. 60, art. 107; 1871, § 1169; 1880, § 2070; 1892, § 1953; 
Laws, 1906, § 2127; Hemingway's 1917, § 1795; Laws, 1930, § 1739; Laws, 
1942, § 641; Laws, 1960, ch. 217, § 8. 

Cross References — Tax upon settlement of fiduciary's account, see § 27-7-69. 
Payment of income tax as prerequisite to approval of final account, see § 27-7-69. 
Executor's or administrator's liability for inheritance taxes, see § 27-9-37. 
Payment of estate taxes as prerequisite to approval of final account, see § 27-9-41. 

JUDICIAL DECISIONS 

1. In general. tor. Walton v. Walton's Estate, 143 Miss. 

2. Discharge of representative. 666, 109 So. 707 (1926). 

1 In general Surviving partner administering part- 
'Executor should be surcharged in his nership estate properly allowed credit in 
final account with sum which he paid out hls final account for payment of partner- 
of funds of estate in settlement of just shl P debt out of ms individual funds. Byrd 
claims against estate, which were re- v - King, 120 Miss. 435, 82 So. 312 (1919). 
quired by law to be duly probated but Decree directing distribution to heirs 
which were not probated within six-month does not affect right to payment of pro- 
period after publication of first notice by bated claims; fact claimant was adminis- 
executor to creditors of estate, as such trator who had filed his final account 
expenditures are without authority of law immaterial. Oliver v. Smith, 94 Miss. 879, 
unless claims had been probated. Oberst 49 So. 1 (1909). 

v. Mullens, 43 So. 2d 560 (Miss. 1949). Until an executor has finally accounted 

Liability of surety may not be fixed in the statute of limitations does not run in 

proceeding for final accounting by execu- his favor against a legatee even where 

225 



§ 91-7-299 



Trusts and Estates 



under the will he was to own the entire 
estate as long as he remained single, and 
the legatee's right to the legacy accrued 
only upon his subsequent marriage. 
Edwards v. Kelly, 83 Miss. 144, 35 So. 418 
(1903). 

An administrator is not chargeable with 
property of which he had no knowledge, 
and is bound only to exercise the care of a 
prudent man in the management of his 
own business. O'Brian Bros. v. Wilson, 82 
Miss. 93, 33 So. 946 (1903). 

2. Discharge of representative. 

Where a decree made the discharge of 
the administrator of a decedent's estate 



conditioned on the administrator's filing 
of vouchers showing the distribution of all 
funds, payments of all debts, and all other 
expenses, and the administrator had not 
filed such vouchers and there was no 
showing that there had been a waiver of 
the filing of the vouchers with the consent 
and approval of the chancellor who issued 
the decree, the administrator had author- 
ity to act in an administrative capacity for 
all the heirs of the decedent and to insti- 
tute a suit on a note against the defendant 
after the entry of the decree. Twilley v. 
McLain, 233 So. 2d 794 (Miss. 1970). 



RESEARCH REFERENCES 



ALR. Conclusiveness of allowance of 
account of trustee or personal representa- 
tive as respects self-dealing in assets of 
estate. 1 A.L.R.2d 1060. 

Application of dead man's statute in 
proceeding involving account of personal 
representative. 2 A.L.R.2d 349. 

Right of executor or administrator to 
appeal from order granting or denying 
distribution. 16 A.L.R.3d 1274. 



Right to partial distribution of estate or 
distribution of particular assets, prior to 
final closing. 18 A.L.R.3d 1173. 

Right to probate subsequently discov- 
ered will as affected by completed prior 
proceedings in intestate administration. 2 
A.L.R.4th 1315. 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 855 et seq. 



§ 91-7-299. Allowance to executor or administrator. 

On the final settlement the court shall make allowance to the executor or 
administrator for the property or the estate which has been lost, or has 
perished or decreased in value, without his fault; and profit shall not be 
allowed him in consequence of increase. The court shall allow to an executor or 
administrator, as compensation for his trouble, either in partial or final 
settlements, such sum as the court deems proper considering the value and 
worth of the estate and considering the extent or degree of difficulty of the 
duties discharged by the executor or administrator; in addition to which the 
court may allow him his necessary expenses, including a reasonable attorney's 
fee, to be assessed out of the estate, in an amount to be determined by the 
court. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 4 (3); 1857, ch. 60, art. 109; 
1871, § 1171; 1880, § 2072; 1892, § 1956; Laws, 1906, § 2130; Hemingway's 
1917, § 1798; Laws, 1930, § 1740; Laws, 1942, § 642; Laws, 1989, ch. 443, § 1, 
eff from and after July 1, 1989. 

Cross References — Compensation of temporary administrator, see § 91-7-59. 
Petition by executor or administrator for allowance of commissions, or for compen- 
sation for extra services and expenses, see Miss. Uniform Chancery Court Rule 6.12. 



226 



Executors and Administrators 



§ 91-7-299 



JUDICIAL DECISIONS 



1. In general. 

2. Court's discretion. 

3. Compensation fixed by will. 

4. Continuing a business. 

4.5. Executor, administrator, or guardian 
acting as attorney. 

5. Allowance for necessary expenses. 

6. Propriety of particular awards. 

7. Miscellaneous. 

1. In general. 

Under this section [Code 1942, § 642] 
the executors are entitled to an allowance 
of compensation, which should be fixed 
within the limits of the statute on the 
gross personal estate actually accounted 
for by the executors in good faith. 
Schwander v. Rubel, 221 Miss. 875, 75 So. 
2d 45 (1954). 

Acceptance by an executor or trustee of 
an appointment under a will, whether 
under a stated compensation or where 
none is provided, except where a statute 
fixes it, is conclusive of any right to an 
increased compensation. Barry v. Barry, 
198 Miss. 677, 21 So. 2d 922, 161 A.L.R. 
864 (1945). 

An executor or trustee cannot accept his 
appointment and reject the condition as to 
compensation upon which it is made. 
Barry v. Barry, 198 Miss. 677, 21 So. 2d 
922, 161 A.L.R. 864 (1945). 

In fixing amount of compensation under 
this section [Code 1942, § 642], there are 
numerous elements to be considered, such 
as: the mechanical work of making out the 
reports and of collecting the money and of 
disbursing it; the skill, responsibility, and 
amount involved; skillful, prompt and ef- 
ficient service in the speedy disposition of 
winding up and settling the estate, re- 
sponsibility and skill being important el- 
ements. Ralston v. Bank of Clarksdale, 
188 Miss. 345, 194 So. 923 (1940). 

Surviving partner not entitled to com- 
pensation for administering partnership 
estate, unless authorized by statute, part- 
nership agreement, or some other valid 
understanding. Byrd v. King, 120 Miss. 
435, 82 So. 312 (1919). 

2. Court's discretion. 

The supreme court will not interfere 
with the chancery court's exercise of dis- 



cretion in regard to the allowance of com- 
pensation for administrator's fees within 
the limits prescribed by this section [Code 
1942, § 642], except in cases of its mani- 
fest and flagrant abuse. Bryan v. Quinn, 
233 Miss. 366, 102 So. 2d 124 (1958). 

The matter of the allowance of fees to 
executors and administrators for services 
rendered in the administration of an es- 
tate rests in the sound discretion of the 
chancery court, there being a minimum 
allowance of not less than one per cent 
and the maximum amount of seven per 
cent. Ralston v. Bank of Clarksdale, 188 
Miss. 345, 194 So. 923 (1940). 

Unless the record discloses an abuse of 
discretion vested in the chancery court, 
the supreme court will not disturb the 
chancellor's action in fixing administra- 
tor's fees within the limits provided by 
this section [Code 1942, § 642]. Ralston v. 
Bank of Clarksdale, 188 Miss. 345, 194 So. 
923 (1940). 

3. Compensation fixed by will. 

Executor accepting appointment under 
will which fixes executor's compensation 
is entitled to no other compensation. 
Vicksburg Pub. Library v. First Nat'l Bank 
& Trust Co., 168 Miss. 88, 150 So. 755 
(1933). 

Where will fixes executor's compensa- 
tion, this section [Code 1942, § 642] does 
not apply. Vicksburg Pub. Library v. First 
Nat'l Bank & Trust Co., 168 Miss. 88, 150 
So. 755 (1933). 

Where will appointed same corporation 
as executor and trustee, directed that "ex- 
ecutor" be paid certain percentage of pro- 
ceeds from sale of realty, and, for its 
services as "trustee," certain percentage of 
trust fund, and used words "executor" and 
"trustee" interchangeably, corporation 
held not entitled to executor's statutory 
compensation as to personal estate ad- 
ministered. Vicksburg Pub. Library v. 
First Nat'l Bank & Trust Co., 168 Miss. 
88, 150 So. 755 (1933). 

4. Continuing a business. 

Without authority from the chancery 
court to continue the business of a testa- 
tor, the estate is not liable to an executor 
for his services upon any basis of quantum 



227 



91-7-299 



Trusts and Estates 



meruit. Barry v. Barry, 198 Miss. 677, 21 
So. 2d 922, 161 A.L.R. 864 (1945). 

In administering estates of decedents, 
operation of a mercantile business should 
not be made alluring to administrators by 
allowance of salaries or exorbitant com- 
missions, estates being administered for 
benefit of parties in interest, creditors, 
and distributees. Crescent Furn. & Mat- 
tress Co. v. Morgan, 178 Miss. 824, 173 So. 
290 (1937). 

Administrator was not entitled to sal- 
ary for conducting intestate's business in 
view of statute fixing compensation at not 
less than one or more than seven per cent 
of estate and necessary expenses. Cres- 
cent Furn. & Mattress Co. v. Morgan, 178 
Miss. 824, 173 So. 290 (1937). 

4.5. Executor, administrator, or 
guardian acting as attorney. 

Where an executor, administrator, or 
guardian also acts as attorney for the 
estate, there is no potential for double 
compensation, at least in the circum- 
stance where the fiduciary fully itemizes 
his services in order to show the extent 
and degree of difficulty of his work and 
any separate legal work is separately 
itemized. Wells v. Evans, 740 So. 2d 332 
(Miss. Ct. App. 1999). 

There is no prohibition in the statute 
that would prevent a fiduciary who is also 
an attorney from petitioning for some part 
of his itemized services to be paid under 
this section, where his right to compensa- 
tion would not necessarily be commensu- 
rate with prevailing legal fees; nor is there 
a prohibition for that same fiduciary, as to 
those separately identified services that 
were unquestionably performed in his ca- 
pacity as an attorney, seeking compensa- 
tion under § 91-7-281, in lieu of being 
paid for those particular services under 
this section. Wells v. Evans, 740 So. 2d 332 
(Miss. Ct. App. 1999). 

5. Allowance for necessary expenses. 

Where heirs to an estate were unable to 
agree among themselves as to being ap- 
praisers and later agreed on disinterested 
parties to appraise the estate, the chan- 
cellor correctly allowed the administrator 
reimbursement of allowance of apprais- 
er's fees in amount of $5 each, to two 



appraisers. Hughes v. Box, 224 Miss. 513, 
81 So. 2d 242 (1955). 

Where at a sale of personal property an 
administrator employed an auctioneer 
and a bookkeeper and allowed them a 
total of $75 on the ground that their 
services were necessary and were to the 
best interests of the estate, the expense 
was properly allowed. Hughes v. Box, 224 
Miss. 513, 81 So. 2d 242 (1955). 

Where in the course of administration of 
an estate the heirs petitioned for sale of 
cotton gin property owned by decedent, 
and the court appointed an administrator 
as a special commissioner to make the 
sale and the administrator obtained al- 
lowances for services of a surveyor, auc- 
tioneer and bookkeeper, the total amount 
of these expenses being $114, and the 
cotton gin property brought $53,000 at a 
sale which far exceeded its appraised 
value, these items of expense were prop- 
erly allowed to the administrator. Hughes 
v. Box, 224 Miss. 513, 81 So. 2d 242 (1955). 

The allowance by the chancellor of pay- 
ment by the administrator of a liberal 
commission to a broker for private sale of 
cattle was sustained hesitantly where the 
administrator was paid the maximum of 
seven per cent of the funds coming into his 
hands, Dabbs v. Fisher., 27 So. 2d 342 
(Miss. 1946). 

6. Propriety of particular awards. 

The chancery court properly denied ex- 
ecutrix fees where the chancellor found 
that the estate was administered in a 
grossly negligent manner; in support of 
this finding of negligent administration, 
or maladministration, the chancellor cited 
the executrix's noncompliance with court 
orders that eventually culminated in her 
being found guilty of civil and criminal 
contempt. Strait v. Collins, 742 So. 2d 147 
(Miss. Ct. App. 1999). 

An administrator's fee, an attorney's 
fee, and accounting fees were excessive 
where (1) the $3.1 million estate was very 
simple, (2) the executor, attorney, and 
accountant had ready access to informa- 
tion which made their jobs considerably 
easier, and (3) the fees equated to approx- 
imately $1200 per hour for the adminis- 
trator and attorney and $300 per hour for 
the accountant. Rich v. Moore, 735 So. 2d 
231 (Miss. 1999). 



228 



Executors and Administrators 



§ 91-7-299 



Absent maladministration, compensa- 
tion for an executor of an estate with a 
gross value in excess of $229,000 should 
be awarded within the statutory guide- 
lines, rather than at $1500 or 6/10 of one 
percent of the value of the estate. Scott v. 
Hollingsworth, 487 So. 2d 811 (Miss. 
1986). 

Where the decedent left an estate of the 
approximate value of $139,000, the allow- 
ance to the executrix of a fee of $5,000 was 
not a manifest and flagrant abuse of dis- 
cretion by the chancellor. Bryan v. Quinn, 
233 Miss. 366, 102 So. 2d 124 (1958). 

Allowance of $3,000 to executor as com- 
pensation for his services is not excessive 
when total assets of estate amounted to 
$48,126.43, total disbursements 

amounted to $42,109.05 and he was suc- 
cessful in making sale of 500 acres of land 
for sum of $36,000, which was $8,000 in 
excess of all prior offers. Oberst v. 
Mullens, 43 So. 2d 560 (Miss. 1949). 

Allowance to administrator of $2,000 as 
his compensation for services rendered in 
an estate consisting of something over 
$65,000 did not indicate an abuse of dis- 
cretion of the chancery court. Ralston v. 
Bank of Clarksdale, 188 Miss. 345, 194 So. 
923 (1940). 

7. Miscellaneous. 

Compensation allowed executor should 
not be reduced on ground that he did not 



comply with law as to payment of unpro- 
bated claims, when amounts expended by 
him without authority of law were re- 
stored by him to estate although claims 
were actually owed by testatrix and estate 
would have been liable had they been duly 
probated in time required by law. Oberst 
v. Mullens, 43 So. 2d 560 (Miss. 1949). 

An executor who renders services to an 
estate beyond what his duties require and 
for which he had the right to employ 
another cannot receive additional com- 
pensation therefor, unless by agreement 
with the court or beneficiaries before he 
performed the service. Barry v. Barry, 198 
Miss. 677, 21 So. 2d 922, 161 A.L.R. 864 
(1945). 

Administrator was not entitled to com- 
missions based upon that part of estate for 
which he did not account. Crescent Furn. 
& Mattress Co. v. Morgan, 178 Miss. 824, 
173 So. 290 (1937). 

Where it appeared that an executor 
intended to return his commission to the 
estate it was improper to treat his inten- 
tion as a donation to a part of the 
distributees, as each was entitled to a 
share therein. Owens v. Owens' Estate, 84 
Miss. 673, 37 So. 149 (1904). 



RESEARCH REFERENCES 



ALR. Costs and other expenses in- 
curred by fiduciary whose appointment 
was improper as chargeable against es- 
tate. 4 A.L.R.2d 160. 

Right of executor or administrator to 
extra compensation for his legal services 
rendered by him. 65 A.L.R.2d 809. 

Right of executor or administrator to 
extra compensation for his accounting ser- 
vices rendered by him. 65 A.L.R.2d 838. 

Right to double compensation where 
same person (natural or corporate) acts as 
executor and trustee. 85 A.L.R.2d 537. 

Resignation or removal of executor, ad- 
ministrator, guardian, or trustee, before 
final administration or before termination 
of trust, as affecting his compensation. 96 
AL.R.3d 1102. 



Attorneys' fees: cost of services provided 
by paralegals or the like as compensable 
element of award in state court. 73 
A.L.R.4th 938. 

Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 836 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1471 
et seq. (compensation and allowances; ex- 
tra compensation). 

8 Am. Jur. Legal Forms 2d, Executors 
and Administrators §§ 104:231 et seq. 
(compensation for executors and adminis- 
trators). 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 812 et seq. 



229 



§ 91-7-301 Trusts and Estates 

§ 91-7-301. Personal estate sold for division. 

When personal property of a deceased person cannot be equally divided in 
kind, the court may, on petition, decree a sale of such property and order a 
distribution of the proceeds; and such sale may be for cash or on credit, as the 
court may direct. All parties interested as distributees or legatees shall be cited 
by summons or by publication, but if the value of the property do not exceed 
five hundred dollars, notice to the distributees or legatees shall not be 
necessary 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (82); 1857, ch. 60, art. 116; 
1871, § 1173; 1880, § 2077; 1892, § 1903; Laws, 1906, § 2078; Hemingway's 
1917, § 1745; Laws, 1930, § 1741; Laws, 1942, § 643. 

Cross References — Bringing advancements into hotchpot, see § 91-1-17. 

JUDICIAL DECISIONS 

1. In general. the petition be filed by the administrator 

As long as the parties in interest are or the distributees. Nabors v. McKay, 27 

before the court, either as plaintiffs or Miss. 799 (1854). 
defendants, it does not matter whether 

§ 91-7-303. Distribution compelled. 

Any person entitled to a distributive share of an intestate's estate, or to a 
legacy under a last will and testament, may, at any time after the expiration 
of six months from the grant of letters testamentary or of administration, 
petition the court therefor, setting forth his claim; and the administrator or 
executor and all persons interested as distributees or legatees shall be cited to 
appear. Upon return of summons executed or publication made, the court may 
order the administrator or executor to make the distribution or to pay the 
legacies according to the rights of the parties, as may be adjudged; but the 
administrator or executor shall not be compelled, before final settlement, to 
make distribution or to pay any legacy until bond, with sufficient sureties, be 
given by the distributee or legatee, conditioned to refund his proportionate 
part of any debts or demands that may afterwards appear against the estate, 
and the costs of recovering the same. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (91); 1857, ch. 60, art. 118; 
1871, § 1175; 1880, § 2076; 1892, § 1961; Laws, 1906, § 2137; Hemingway's 
1917, § 1805; Laws, 1930, § 1742; Laws, 1942, § 644; Laws, 1924, ch. 152. 

Cross References — Partition of land by agreement or by arbitration, see § 11-21-1. 

Ordering sale of land rather than partition, see § 11-21-11. 

Bringing advancements into hotchpot, see § 91-1-17. 

Distribution of insolvent estate, see §§ 91-7-261, 91-7-271. 

Appointment of custodian for unclaimed distributive share, see § 91-7-321. 



230 



Executors and Administrators 



§ 91-7-305 



JUDICIAL DECISIONS 



1. In general. 

2. Refunding bonds. 

1. In general. 

Residuary legatee cannot recover from 
estate of decedent's sister such sums as 
were expended by sister in her own behalf 
after acquiring possession of decedent's 
estate on setting aside of will as court 
would have compelled trustees under will, 
if it had not been set aside, to expend for 
her benefit. Rice v. McMullen, 207 Miss. 
706, 43 So. 2d 195 (1949). 

Residuary legatee who was to receive on 
death of decedent's sister a one-fifth part 
of property remaining in hands of trustees 
under will is not guilty of laches by failure 
to demand anything of trustees until 
death of decedent's sister as he had no 
right to anything until her death. Rice v. 
McMullen, 207 Miss. 706, 43 So. 2d 195 
(1949). 

Beneficiary of testamentary trust has 
right to follow trust property which has 
been wrongfully transferred to third party 
with notice of trust and to recover res if he 
can identify it in hands of third party, or 
he can have judgment against third party 
for value of trust property if such identi- 
fication or tracing is impossible. Rice v. 
McMullen, 207 Miss. 706, 43 So. 2d 195 
(1949). 



Distributee may sue in chancery but not 
at law to recover personal property of 
decedent where there are no outstanding 
debts against estate and no administra- 
tion, or final settlement of administration. 
Jones v. R.L. Clemmer & Son, 98 Miss. 
508, 54 So. 4 (1911). 

No proceeding for distribution of any of 
the estate before expiration of statutory 
time period from grant of letters is per- 
missible. Jones v. Jones, 94 Miss. 460, 49 
So. 115 (1909). 

Proceeds of sale of timber being only 
assets of estate of deceased wife, assignee 
of husband, entitled to share thereof, 
could maintain bill for distribution of the 
funds in hands of administrator. Mcintosh 
Bros. v. Rutland, 88 Miss. 718, 41 So. 372 
(1906). 

2. Refunding bonds. 

After the expiration of the statutory 
time period, if there be assets, the 
distributees are prima facie entitled to 
distribution upon the execution of the 
refunding bonds. Packwood v. Elliott, 43 
Miss. 504 (1870). 

The distributees may compel distribu- 
tion of any balance not required for the 
immediate exigencies of the estate, upon 
the execution of refunding bonds. Allison 
v. Abrams, 40 Miss. 747 (1866). 



RESEARCH REFERENCES 



ALR. Ademption of bequest of proceeds 
of property. 45 A.L.R.3d 10. 

Proper disposition under will providing 
for allocation of express percentages or 
proportions amounting to more or less 
than whole of residuary estate. 35 
A.L.R.4th 788. 



Am Jur. 31 Am. Jur. 2d, Executors and 
Administrators §§ 974 et seq. 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 
ecutors and Administrators, Forms 1181 
et seq. (orders for distribution). 

CJS. 34 C.J.S., Executors and Adminis- 
trators §§ 559 et seq. 



§ 91-7-305. Distribution of assets in kind to surviving spouse. 

(1) Whenever under any last will and testament or trust indenture the 
executor, trustee, or other fiduciary is required to, or has an option to, satisfy 
a bequest, devise, or transfer in trust to or for the benefit of the surviving 
spouse of a decedent by a transfer of assets of the estate or trust in kind at the 
values as finally determined for federal estate tax purposes, the executor, 
trustee, or other fiduciary shall, in the absence of contrary provisions in such 
will or trust indenture, satisfy such bequest, devise, or transfer by the 



231 



§ 91-7-307 Trusts and Estates 

distribution of assets, including cash, fairly representative of the appreciation 
or depreciation in the value of all property available for distribution in 
satisfaction of such bequest, devise, or transfer. 

(2) This section shall apply to wills of decedents dying before or after May 
20, 1966, and to trust agreements executed before or after such date; provided, 
however, that this section shall not be applied so as to require repayment to the 
fiduciary of any distributions actually made prior to such date, nor to impose 
any obligation or liability upon the fiduciary by reason of distributions actually 
made prior to such date. 

(3) The enactment of this statute is not intended to imply that the present 
law of this state, relating to selection of property by fiduciaries in the 
circumstances herein described, has been otherwise than as set forth in 
subsection (1) hereof. 

SOURCES: Codes, 1942, § 644.7; Laws, 1966, ch. 393, §§ 1-4, eff from and after 
passage (approved May 20, 1966). 

Cross References — Payment of indebtedness or delivery of personal property of 
decedent to decedent's successor, see § 91-7-322. 

RESEARCH REFERENCES 

ALR. Statutory or constitutional provi- ests, allowances, homestead rights, or the 
sion allowing widow but not widower to like as denial of equal protection of law. 18 
take against will and receive dower inter- A.L.R.4th 910. 

§ 91-7-307. Delaying settlement. 

If an executor or administrator improperly delay making a final settle- 
ment, he shall be summoned to show cause why a final settlement should not 
be made. On the return of summons executed, if a final settlement be not made 
or cause shown why it cannot then be made, the court may fine such delinquent 
in any sum not exceeding five hundred dollars and imprison him not exceeding 
three months, for a contempt. Any executor or administrator whose letters 
have been revoked may be dealt with in like manner for failure to make 
settlement. 

SOURCES: Codes, 1857, ch. 60, art. 108; 1871, § 1170; 1880, § 2071; 1892, § 1955; 
Laws, 1906, § 2129; Hemingway's 1917, § 1797; Laws, 1930, § 1743; Laws, 
1942, § 645. 

RESEARCH REFERENCES 

ALR. Personal liability of executor or distributive shares where payment is de- 
administrator for interest on legacies or layed. 18 A.L.R.2d 1384. 



232 



Executors and Administrators 



§ 91-7-309 



§ 91-7-309. Accounts may be opened and falsified in two 
years. 

Any person interested may, at any time within two years after final 
settlement, by bill or petition, open the account of any executor, administrator, 
or guardian and surcharge and falsify the same, and not after, saving to minors 
and persons of unsound mind the same time after the removal of their 
disabilities. Such bills or petitions may be filed without leave of the court or 
chancellor, and evidence shall be admissible in such cases to show the falsity 
of the account. Such bills and petitions shall not be governed by the rules 
applicable to bills of review in chancery, but in such cases it will be the duty of 
the court to correct any errors of law or fact occurring in the final settlement 
of the executor, administrator, or guardian. 

SOURCES: Codes, 1880, § 2075; 1892, § 1960; Laws, 1906, § 2136; Hemingway's 
1917, § 1804; Laws, 1930, § 1744; Laws, 1942, § 646; Laws, 1894, ch. 53. 

Cross References — Contents of final accounts, see § 91-7-291. 

JUDICIAL DECISIONS 



1. In general. 

In a proceeding by a widow to reopen 
the estate of her deceased husband more 
than two years after entry of a final decree 
on the ground that the final account had 
never been filed and that the final decree 
was therefore a nullity, the trial court 
properly denied the petition where the 
transcript was a part of the record and it 
indicated that, although the final account 
had not be stamped "Filed" until three 
years later, there was no dispute that it 
had been presented to the court, that it 
had been a part of the record on presen- 
tation of same, and that the decree had 
been based upon said account and evi- 
dence heard for the approval thereof, and 
where there was no specific charge of 
fraud against the executor which would 
constitute a bar to the statute of limita- 
tions. Byrd v. Page, 384 So. 2d 1038 (Miss. 
1980). 

The action of an administratrix of a 
decedent, attacking final decrees entered 
in her decedent's guardianship and in 
settlement of the decedent's deceased fa- 
ther's estate, claiming an interest in the 
after-acquired property of coheirs, was 
barred by the section [Code 1942, § 646] 
where no petition was filed to falsify the 
settlement of the two administrations 
within two years after the date of the 



decrees. Barrett v. Turner, 229 So. 2d 563 
(Miss. 1969). 

This provision does not apply to one 
entitled to participate in the distribution 
who was not made a party to the admin- 
istration proceeding, where there was no 
statutory proceeding to determine heirs. 
Shepherd v. Townsend, 249 Miss. 383, 163 
So. 2d 746 (1964). 

Petition by war veteran's widow against 
administratrix and her bondsmen to re- 
view previous proceedings whereby ad- 
ministratrix distributed to various per- 
sons sums due to veteran under federal 
acts held not demurrable because 
distributees were not joined as parties, 
where money involved, under federal and 
state statutes, belonged to widow as sole 
distributee, and persons to whom admin- 
istratrix distributed money were strang- 
ers to estate so far as widow's rights were 
concerned. Lewis v. Jefferson, 173 Miss. 
657, 161 So. 669 (1935). 

Since heirs under statute could chal- 
lenge administrator's final steps until two 
years after final account was approved, 
judgment approving administrator's sale 
was interlocutory, and hence court at sub- 
sequent term could require administrator 
to charge himself with true value of mer- 
chandise sold and subsequently repur- 
chased by administrator after fraudu- 



233 



§ 91-7-311 



Trusts and Estates 



lently inducing widow not to bid. Rea v. 
Smith, 172 Miss. 238, 159 So. 845 (1935). 
Person interested in estate after dismis- 
sal of exception to account was without 
right to reopen, falsify, and surcharge ac- 
count on same issue. Bright v. Bright, 156 
Miss. 766, 126 So. 901 (1930). 



Where heir did not demand accounting, 
his heirs cannot do so after 30 years. 
Norris v. Burnett, 108 Miss. 407, 66 So. 
332 (1914), motion denied, 108 Miss. 378, 
66 So. 748 (1914). 



§ 91-7-311. Bonds to be recorded; suits thereon. 

All bonds required and given in the administration of estate, testate and 
intestate, and the bond or bonds of the county administrator shall be recorded 
in the office of the clerk of the chancery court of the county, in a book kept for 
that purpose, and may be put in suit by any person injured by a breach thereof, 
he being responsible for costs. Any such bond shall not be void upon the first 
recovery, but may be sued on from time to time until the whole penalty shall 
have been recovered. When the whole penalty shall be recovered, the chancery 
court shall apportion the recovery, according to the rights of parties. 

SOURCES: Codes, 1892, § 1854; Laws, 1906, § 2028; Hemingway's 1917, § 1693; 
Laws, 1930, § 1745; Laws, 1942, § 647. 

Cross References — Chancery court's concurrent jurisdiction over suits on bonds of 
fiduciaries, see Miss. Const. Art. 6, § 161. 

Bond of executor or administrator with will annexed, see § 91-7-41. 

When bond is not required, see § 91-7-45. 

Administrator's bond, see § 91-7-67. 

Bond of administrator de bonis non, see § 91-7-69. 

Right of administrator de bonis non to maintain action on bond of former executor or 
administrator, see § 91-7-71. 

County administrator's bond, see § 91-7-75. 

Suit on bond for failure to account, see § 91-7-277. 

JUDICIAL DECISIONS 



1. In general. 

On appeal from decree on exceptions to 
final account of administrator, supreme 
court would render decree against surety 
on administrator's bond, where surety 
waived process on petition filed showing 
breach of bond, appeared in court and 
controlled exceptions to final account, 
agreed to appointment of master, excepted 
to his report, appeared in supreme court 
and made no objection to form of petition. 
Crescent Furn. & Mattress Co. v. Morgan, 
178 Miss. 824, 173 So. 290 (1937). 

Liability of surety on administrator's 
bond held not limited to those creditors 
who appealed from decree on exceptions to 
final account. Crescent Furn. & Mattress 
Co. v. Morgan, 178 Miss. 824, 173 So. 290 
(1937). 



Suit maintainable in Mississippi on 
bond of executor, in name of Tennessee to 
compel executor appointed in Tennessee 
to pay over money converted in Missis- 
sippi, to be administered according to Ten- 
nessee law. Cutrer v. State of Tenn., 98 
Miss. 841, 54 So. 434, Am. Ann. Cas. 
1913D,344 (1911). 

Courts of Mississippi have jurisdiction 
of suit on executrix's bond for concealing 
assets, though she resides in Alabama, 
where she resided in Mississippi at the 
decedent's death, administration under- 
taken here, situs of assets here, and 
surety resides here. Myers v. Martinez, 95 
Miss. 104, 48 So. 291 (1909). 



234 



Executors and Administrators § 91-7-315 

RESEARCH REFERENCES 

Am Jur. 31 Am. Jur. 2d, Executors and ecutors and Administrators, Forms 1601 
Administrators §§ 1105, 1114. et seq. (actions on administration bonds). 

10 Am. Jur. PI & Pr Forms (Rev), Ex- 

§ 91-7-313. Suit for devastavit. 

Parties interested in an estate as legatees, distributees, or creditors may, 
either jointly or severally, institute proceedings upon the bond of the executor 
or administrator or guardian for a devastavit against the principal and his 
surety without first having instituted suit against the executor or administra- 
tor or guardian to establish a devastavit. When any executor, administrator or 
guardian is a nonresident of, or shall absent himself from, or conceal himself 
within this state so that personal service of summons or citation or attachment 
cannot be made upon him, and such nonresident, absent or concealed executor, 
administrator, or guardian shall fail to file his accounts and make his 
settlements as required by law, or shall have unlawfully removed any of the 
property committed to his trust, or shall have been guilty of any misappropri- 
ation or devastavit, it shall be the duty of the court, on the motion of the clerk 
as elsewhere provided in this chapter, or on the motion of any party in interest, 
to proceed against the surety or sureties on the bond of said executor, 
administrator, or guardian, in respect to all of which matters the said surety or 
sureties shall be taken and held as principal. In proceeding as aforementioned, 
the default of the said executor, administrator, or guardian in failing to file and 
settle his accounts as required by law shall be taken as prima facie evidence 
that the said defaulter has misappropriated the money or property, or both, 
which may be disclosed by the inventory, appraisement, or by any other of the 
official papers in the case, or which may be shown by competent evidence 
outside of said record, to have come into the possession of said defaulter. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 12 (4); 1857, ch. 60, art. 123; 
1871, § 1180; 1880, § 2084; 1892, § 1855; Laws, 1906, § 2030; Hemingway's 
1917, § 1695; Laws, 1930, § 1746; Laws, 1942, § 648. 

Cross References — Chancery court's concurrent jurisdiction over suits on bonds of 
fiduciaries, see Miss. Const. Art. 6, § 161. 

Limitation of actions against executors or administrators, see § 15-1-25. 
Penalty for removal of estate property from state, see § 91-7-257. 

§ 91-7-315. New bond of executors and administrators may be 
required. 

If the bond of an executor or an administrator, whether taken at the time 
of the grant of letters or afterwards, be insufficient, the court or chancellor or 
clerk may, on five days' notice to the executor or administrator, require him to 
give a new bond; and in default thereof the letters shall be revoked and 
administration de bonis non granted to some competent person. If such new 
bond be given, it shall be cumulative security and shall bind the obligors 
therein for past as well as future liabilities. 

235 



§ 91-7-317 Trusts and Estates 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (64); 1857, ch. 60, art. 66; 
1871, § 1121; 1880, § 2012; 1892, § 1862; Laws, 1906, § 2037; Hemingway's 
1917, § 1702; Laws, 1930, § 1747; Laws, 1942, § 649. 

Cross References — Bond of executor or administrator with will annexed, see 
§ 91-7-41. 
Administrator's bond, see § 91-7-67. 
County administrator's bond, see § 91-7-75. 

JUDICIAL DECISIONS 

1. In general. written evidence of limited assumption of 
Certificate whereby defendant assumed liability, and hence defendant was liable 
liability for losses under administrator's for amount wrongfully disbursed by ad- 
bond arising out of acts committed after ministrator after May 1, 1933, but not for 
May 1, 1933, was not "new bond" so as to amounts wrongfully disbursed prior to 
bind defendant under statute for past as that time. National Sur. Corp. v. Laughlin, 
well as future liability, but was merely 178 Miss. 499, 172 So. 490 (1937). 

RESEARCH REFERENCES 

ALR. What funds, not part of the es- (Rev), Executors and Administrators, 

tate, are received under color of office so as Forms 361 et seq. (additional bond), 

to render liable surety on executor's or CJS. 34 C.J.S., Executors and Adminis- 

administrator's bond. 82 A.L.R.3d 869. trators § 902. 

Am Jur. 9 A Am. Jur. PI & Pr Forms 

§ 91-7-317, Relief of sureties and new bond. 

A surety on any bond of an executor, administrator, county administrator, 
or any other administrator apprehending danger of loss because of his 
suretyship may petition the court, chancellor, or clerk to require the executor 
or administrator to give a new bond and that he may be discharged from 
further liability. The court, chancellor, or clerk, on five days' notice to the 
executor or administrator, shall grant such petition and require a new bond, 
within a reasonable time, to be prescribed. In case of refusal or failure to give 
such new bond, the executor or administrator shall be removed and adminis- 
tration de bonis non granted. The acts done by the executor or administrator, 
and all proceedings that may have been instituted against him, shall be 
treated and conducted by or against his successor, as in case of the death of an 
executor or administrator. If the executor or administrator shall give new bond 
as required, the original bond shall from that time cease to be operative in 
future, but not as to previous liabilities; and the effect of such new bond shall 
be to bind the obligors therein for past as well as future liabilities. 

SOURCES: Codes, Hutchinson's 1848, ch. 49, art. 1 (65); 1857, ch. 60, art. 66; 
1871, § 1121; 1880, §§ 2002, 2012; 1892, § 1863; Laws, 1906, § 2038; Heming- 
way's 1917, § 1703; Laws, 1930, § 1748; Laws, 1942, § 650. 

Cross References — Cancellation of bond of executor or administrator by chancery 
court, see § 9-5-103. 

Sureties generally, see §§ 87-5-1 et seq. 

236 



Executors and Administrators § 91-7-321 

JUDICIAL DECISIONS 

1. In general. charged of liability without arriving or 

A surety on an administrator's bond is proving any facts giving rise to an appre- 

entitled under this section [Code 1942, hension of loss. In re Rowell's Estate, 247 

§ 650] as a matter of right to be dis- Miss. 571, 156 So. 2d 812 (1963). 

§ 91-7-319. Executors may receive credit for costs of bond in 
surety company. 

Any receiver, assignee, guardian, executor, administrator, or other fidu- 
ciary required by law or the order of any court or judge to give bond or other 
obligation, as such, may include, as a part of the lawful expense of executing 
this trust, and may receive credit for the sum paid to a guaranty or surety 
company, authorized under the laws of this state so to do, for becoming his 
surety on such bond, not to exceed the sum paid for such bond as determined 
by the rate on file with and approved by the Commissioner of Insurance for 
such company. 

SOURCES: Codes, 1906, §§ 2029, 2440; Hemingway's 1917, §§ 1694, 2001; Laws, 
1930, § 760; Laws, 1942, § 1675; Laws, 1900, chs. 93, 96; Laws, 1956, ch. 235; 
Laws, 1987, ch. 422, § 56, eff from and after January 1, 1988. 

JUDICIAL DECISIONS 

1. In general. erty under this section [Code 1942, 

Premium of bond of surviving partner § 1675]. Rose v. Jones, 118 Miss. 494, 78 
proper charge against partnership prop- So. 771 (1918). 

§ 91-7-321. Custodian appointed for distributive share. 

If any person entitled, under a decree of the chancery court, to a 
distributive share of an estate, or any other funds under the control of the 
court, shall not apply for it within six months after the decree of the court 
adjudicating his right thereto, a custodian of such share or interest may be 
appointed by the court, or the chancellor in vacation, without notice to any one. 
The court may make such order for the safekeeping or secure investment of the 
fund as may be proper. 

SOURCES: Codes, 1880, § 2074; 1892, § 1959; Laws, 1906, § 2135; Hemingway's 
1917, § 1803; Laws, 1930, § 1750; Laws, 1942, § 652. 

ATTORNEY GENERAL OPINIONS 

Under Miss. Code Section 91-7-321, vate funds being held in trust for benefi- 

court may "make such order for the safe- ciaries; as such, deposit into account of 

keeping or secure investment of the fund county treasury would not be appropriate, 

as may be proper"; however, these funds Salter, Apr. 28, 1993, A.G. Op. #93-0227. 
are not public funds; rather they are pri- 



237 



§ 91-7-322 Trusts and Estates 

§ 91-7-322. Payment of indebtedness or delivery of personal 
property of decedent to decedent's successor; affidavit of 
successor. 

(1) Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 
81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a 
decedent, any person indebted to the decedent or having possession of tangible 
personal property or an instrument evidencing a debt, obligation, stock, or 
chose in action belonging to the decedent shall make payment when due of the 
indebtedness or deliver the tangible personal property or an instrument 
evidencing a debt, obligation, stock, or chose in action to a person claiming to 
be the successor of the decedent, as denned herein, upon being presented an 
affidavit made by the successor stating: 

(a) That the value of the entire estate of the decedent, wherever located, 
excluding all liens and encumbrances thereon, does not exceed Thirty 
Thousand Dollars ($30,000.00); 

(b) That at least thirty (30) days have elapsed since the death of the 
decedent; 

(c) That no application or petition for the appointment of a personal 
representative of the decedent is pending, nor has a personal representative 
of the decedent been appointed in any jurisdiction; and 

(d) The facts of relationship establishing the affiant as a successor of the 
decedent. 

(2) For the purposes of this section, "successor" means the decedent's 
spouse; or, if there is no surviving spouse of the decedent, then the adult with 
whom any minor children of the decedent are residing; or, if there is no 
surviving spouse or minor children of the decedent, then any adult child of the 
decedent; or, if there is no surviving spouse or children of the decedent, then 
either parent of the decedent. 

(3) Any person who is the successor of the decedent, because the person is 
an adult with whom the minor children of the decedent are living, shall receive 
any property or payments of or for the decedent for the use and benefit of said 
children. 

(4) The successor of a decedent, upon complying with the provisions of 
subsection (1) of this section, shall be empowered to negotiate, transfer 
ownership and exercise all other incidents of ownership with respect to the 
personal property and instruments described in subsection (1) of this section. 

(5) Any person paying, delivering, transferring or issuing personal prop- 
erty or the evidence thereof pursuant to the provisions of subsection (1) of this 
section shall be discharged and released to the same extent as if such person 
had dealt with a personal representative of the decedent. Such person shall not 
be required to see to the proper application of the personal property or evidence 
thereof or to inquire into the truth of any statement in the affidavit. If any 
person to whom an affidavit is delivered, in accordance with the provisions of 
subsection (1) of this section, refuses to pay, deliver, transfer or issue any 
personal property or evidence thereof to the successor, such property or 

238 



Executors and Administrators § 91-7-323 

evidence thereof may be recovered or its payment, delivery, transfer or 
issuance compelled upon proof of the successor's right in a proceeding brought 
in chancery court for such purpose by or on behalf of the persons entitled 
thereto. Any person to whom payment, delivery, transfer or issuance is made 
shall be answerable and accountable to the personal representative of the 
estate, if any, or to any other person having a superior right. 

SOURCES: Laws, 1982, ch. 403, § 1; Laws, 1983, ch. 407; Laws, 1984, ch. 333; 
Laws, 1986, ch. 386; Laws, 2003, ch. 408, § 1, eff from and after July 1, 2003. 

Amendment Notes — The 2003 amendment substituted "Thirty Thousand Dollars 
($30,000.00)" for "Twenty Thousand Dollars ($20,000.00)" in (l)(a). 

§ 91-7-323. Wages due deceased employee. 

When any person, male or female, shall die leaving wages, salary or other 
compensation due him, it shall be lawful for the debtor to pay said wages, 
salary or other compensation to the wife or husband, as the case may be, of said 
deceased creditor if he or she leaves a wife or husband, as the case may be, 
surviving him or her; and if he or she shall leave no wife or husband surviving 
him or her, then to his or her children if adults; and if he or she shall leave no 
children and no wife or husband surviving him or her, then to his or her 
mother; and if he or she shall leave no wife or husband or children or mother 
surviving him or her, then to his or her father; and if he or she shall leave no 
wife or children or husband or mother or father surviving him or her, then to 
his or her brothers and sisters if adults. If such creditor shall have left no wife, 
husband, children, nor brothers nor sisters, nor father nor mother surviving 
him or her, or if any of his or her children surviving him or her shall be minors, 
or if any of his or her brothers or sisters surviving him or her, entitled to 
inherit, shall be minors, then it shall be lawful for said debtor to pay said 
wages, salary or other compensation to the chancery clerk of the county in 
which said creditor resided at the time of his or her death, or of the county 
where he or she died. 

SOURCES: Codes, 1906, § 2133; Hemingway's 1917, § 1801; Laws, 1930, § 1751; 
Laws, 1942, § 653; Laws, 1920, ch. 304; Laws, 1981, ch. 394, § 1, eff from and 
after July 1, 1981. 

Cross References — Payment of indebtedness or delivery of personal property of 
decedent to decedent's successor, see § 91-7-322. 

ATTORNEY GENERAL OPINIONS 

Consistent with and pursuant to IRS tion pay issued to a deceased state em- 
Revenue Ruling 86-109, neither federal ployee's designee or successor. Ranck, 
nor state income taxes would be deducted June 18, 1999, A.G. Op. #99-0230. 
from payments of accrued wages or vaca- 



239 



§ 91-7-325 Trusts and Estates 

RESEARCH REFERENCES 

Am Jur. 9A Am. Jur. PI & Pr Forms 10 Am. Jur. PI & Pr Forms (Rev), Ex- 

(Rev), Estates, Form 4.1 (Complaint, peti- ecutors and Administrators, Form 1507.1 

tion, or declaration — To collect compen- (Affidavit or declaration — To collect com- 

sation owed to deceased spouse). pensation owed deceased spouse). 

§ 91-7-325. Suit to recover wages if not paid within sixty days. 

After the sixty days referred to in Section 91-7-323 have passed, the 
parties hereinbefore designated as being the person to whom the wages so due 
the deceased creditor may be paid shall have the right, if they be adults, to 
maintain a suit to recover the amount due to the deceased creditor. When the 
party or parties entitled to receive said amount are minors, suit may be 
brought and maintained for them, by and in the name of the chancery clerk 
who is entitled to receive same. 

SOURCES: Codes, Hemingway's 1921 Supp. § 1801a; Laws, 1930, § 1752; Laws, 
1942, § 654; Laws, 1920, ch. 304. 

RESEARCH REFERENCES 

Am Jur. 9A Am. Jur. PI & Pr Forms 10 Am. Jur. PI & Pr Forms (Rev), Ex- 

(Rev), Estates, Form 4.1 (Complaint, peti- ecutors and Administrators, Form 1507.1 

tion, or declaration — To collect compen- (Affidavit or declaration — To collect com- 

sation owed to deceased spouse). pensation owed deceased spouse). 

§ 91-7-327. Duty of chancery clerk when wages paid to him. 

Where such wages are paid to the chancery clerk as provided in Sections 
91-7-323 and 91-7-325, it shall be the duty of the chancery clerk to pay that 
portion of the wages of such employee which may belong to the adult children 
or brothers and sisters of such deceased employe, and to report to the next term 
of the chancery court who are the minor brothers or sisters or children of said 
employe and how much is coming to each one of the heirs of said employe. 
Thereupon the chancery court shall enter an order upon the minutes of the 
court, directing the payment by the chancery clerk of the shares of such minor 
children or brothers and sisters of such deceased employe. In any case where 
the employer shall pay such wages to the chancery clerk, he shall be 
discharged from all further liability. For receiving and disbursing the wages 
which may be paid to him, the clerk shall receive the commissions allowed to 
administrators and executors for collecting and distributing moneys belonging 
to the estate of a decedent. 

SOURCES: Codes, 1906, § 2134; Hemingway's 1917, § 1802; Laws, 1930, § 1753; 
Laws, 1942, § 655. 

RESEARCH REFERENCES 

Am Jur. 9A Am. Jur. PI & Pr Forms tion, or declaration — To collect compen- 
(Rev), Estates, Form 4.1 (Complaint, peti- sation owed to deceased spouse). 

240 



Executors and Administrators § 91-7-331 

10 Am. Jur. PI & Pr Forms (Rev), Ex- (Affidavit or declaration — To collect com- 
ecutors and Administrators, Form 1507.1 pensation owed deceased spouse). 

§ 91-7-329. Not to apply to estates administered upon. 

Sections 91-7-323 through 91-7-327 shall not apply in cases where the 
estate of deceased creditor is administered upon. 

SOURCES: Codes, Hemingway's 1921 Supp. § 1801b; Laws, 1930, § 1754; Laws, 
1942, § 656; Laws, 1920, ch. 304. 

RESEARCH REFERENCES 

Am Jur. 9A Am. Jur. PI & Pr Forms 10 Am. Jur. PI & Pr Forms (Rev), Ex- 

(Rev), Estates, Form 4.1 (Complaint, peti- ecutors and Administrators, Form 1507.1 

tion, or declaration — To collect compen- (Affidavit or declaration — To collect com- 

sation owed to deceased spouse). pensation owed deceased spouse). 

§ 91-7-331. "Administrator" denned. 

The word administrator in this chapter shall embrace a temporary 
administrator whenever the contrary is not clearly inferable from the context. 

SOURCES: Codes, 1880, § 2093; 1892, § 1962; Laws, 1906, § 2138; Hemingway's 
1917, § 1806; Laws, 1930, § 1749; Laws, 1942, § 651. 

JUDICIAL DECISIONS 

1. In general. administrator. King v. Wade, 175 Miss. 72, 

Temporary administrator held entitled 166 So. 327 (1936). 
to compensation on same basis as regular 



241 



CHAPTER 9 
Trusts and Trustees 

Article 1. Trusts — General Provisions 91-9-1 

Article 3. Uniform Trustees' Powers 91-9-101 

Article 5. Resignation and Succession of Trustees 91-9-201 

Article 7. Removal of Trustees 91-9-301 

Article 9. Administration of Private Foundation Trusts, Charitable 

Trusts, and Split-Interest Trusts 91-9-401 

Article 11. Family Trust Preservation Act of 1998 91-9-501 

Article 1. 
Trusts — General Provisions. 



Sec. 

91-9-1. 

91-9-2. 

91-9-3. 

91-9-5. 

91-9-7. 

91-9-9. 



Creation of trusts and confidences. 
Trusts authorized to take title to real property. 
Assignments of trusts. 
Filing or producing vouchers by trustees. 

Filing of certificate of trust agreement in lieu of entire trust agreement. 
Powers of fiduciaries to promote compliance with environmental laws; 
court approval; costs; definitions; standard of conduct. [Repealed effec- 
tive July 1, 2008]. 



§ 91-9-1. Creation of trusts and confidences. 

Hereafter all declarations or creations of trusts or confidence of or in any 
land shall be made and manifested by writing, signed by the party who 
declares or creates such trust, or by his last will, in writing; or else they shall 
be utterly void. Every writing declaring or creating a trust shall be acknowl- 
edged or proved as other writings. It, or a certificate of the trust in accordance 
with Section 91-9-7, shall be lodged with the clerk of the chancery court of the 
proper county to be recorded, and the trust shall only take effect from the time 
it or its certificate is so lodged for record. Where any trust shall arise or result, 
by implication of law, out of a conveyance of land, such trust or confidence shall 
be of the like force and effect the same as it would have been if this statute had 
not been passed. 

SOURCES: Codes, 1857, ch. 44, art. 5; 1871, § 2896; 1880, § 1296; 1892, § 4230; 
Laws, 1906, § 4780; Hemingway's 1917, § 3124; Laws, 1930, § 3348; Laws, 
1942, § 269; Laws, 1993, ch. 507, § 2, eff from and after July 1, 1993. 

Cross References — Deed of trust or mortgage, see § 89-1-63. 
Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject 
to the provisions of Title 91, see Miss. R. Civ. P. 81. 



242 



Trusts and Trustees 



§ 91-9-1 



JUDICIAL DECISIONS 



1. In general. 

2. Acknowledgment and recording. 

3. Applicability to personalty or mixed 

property. 

4. Oral proof that deed was intended to 

be a mortgage. 

5. Constructive or resulting trust. 

6. — Proof of fraud. 

7. — As between husband and wife. 

8. — As between mortgagor and mort- 

gagee. 

1. In general. 

A testamentary trust which provided for 
the "education" of various nieces and 
nephews of the testator was not ambig- 
uous where the testator intended that 
broad discretion be invested in the trustee 
and the trustee had the authority to con- 
sider the special needs, aptitudes and dil- 
igence of each beneficiary in determining 
his or her educational needs. Davis v. 
Deposit Guar. Bank, 541 So. 2d 423 (Miss. 
1989). 

No enforceable trust is created by an 
oral agreement that if other members of a 
family will refrain from bidding against 
promisor at a foreclosure sale, he will 
convey to each a pro rata share upon being 
reimbursed. Mcllwain v. Doby, 238 Miss. 
839, 120 So. 2d 553 (1960). 

Although express trusts must be in 
writing, resulting trusts need not be in 
writing. Chichester v. Chichester, 209 
Miss. 628, 48 So. 2d 123 (1950). 

This section [Code 1942, § 269] applies, 
and is confined to, express trusts, and 
does not apply to constructive trusts. 
Adcock v. Merchants & Mfrs. Bank, 207 
Miss. 448, 42 So. 2d 427 (1949). 

Under this section [Code 1942, § 269], 
express trusts are void unless reduced to 
writing and signed, but resulting trusts or 
implied trusts are not required to be in 
writing and may be established by parol 
testimony from acts of parties. Triplett v. 
Bridgforth, 205 Miss. 328, 38 So. 2d 756 
(1949). 

Oral contract by prospective purchaser 
of land to have title examined and report 
any defects to vendors who agreed to 
make title good did not create a valid 
express trust covering the property in 



favor of vendors against purchaser who 
notified vendors he was no longer inter- 
ested, but who purchased and received 
forfeited tax land patent from state, when 
his title examination disclosed the land 
had been sold to state for delinquent taxes 
and not redeemed. Wilson v. Martin, 204 
Miss. 196, 37 So. 2d 254 (1948), error 
overruled, 204 Miss. 205, 37 So. 2d 775 
(1948). 

Deed conveying described land to 
named trustees and their successors so 
long as land is used for school purposes 
does not declare or create trust in lands, 
but conveys estate in fee simple defeasi- 
ble. Kelly v. Wilson, 204 Miss. 56, 36 So. 
2d 817 (1948). 

No trust was established under this 
section [Code 1942, § 269] by a verbal gift 
of land from a father to his son. Smith v. 
Taylor, 183 Miss. 542, 184 So. 423 (1938). 

Declaration of trust giving trustees con- 
trol of lands previously held by corpora- 
tions as trustees and earnings therefrom 
for purpose of disposition of property for 
benefit of certificate holders held not to 
violate public policy or anti-trust statutes 
where not inimical to public welfare. State 
ex rel. Knox v. Edward Hines Lumber Co., 
150 Miss. 1, 115 So. 598 (1928). 

2. Acknowledgment and recording. 

In an action by the widow of a trustor to 
quiet title to real property, where the 
trustor and his wife had resided on the 
property for many years, and the property 
was not included in a warranty deed to the 
trustees, and the purported trust instru- 
ment which did list the property in its 
schedule of property subject to the trust 
was executed prior to the trustor's mar- 
riage and not filed for record until several 
years after the marriage and after the 
trustor's death, the property was home- 
stead property and was not subject to the 
trust agreement. Smith v. Smith, 233 So. 
2d 527 (Miss. 1970). 

A letter by the grantee to two heirs 
stating that if they would execute a deed 
to him, he would reconvey to them and the 
other heirs their interest after he had 
obtained a bank loan upon the property, 
was not subject to recordation and did not 



243 



§ 91-9-1 



Trusts and Estates 



meet the requirements of this section 
[Code 1942, § 269] for an express trust. 
Thames v. Holcomb, 230 Miss. 387, 92 So. 
2d 548 (1957). 

Deed unacknowledged held not entitled 
to record and not to create a valid trust, 
and grantee could not supply defect by 
subsequent written statement or admis- 
sion of the trust. Board of Trustees of M.E. 
Church S. v. Odom, 100 Miss. 64, 56 So. 
314 (1911). 

3. Applicability to personalty or 

mixed property. 

Where parol agreement that deceased's 
property will someday belong to certain 
persons if they continue looking after such 
property, includes both realty and person- 
alty, the transaction is not separable in 
respect to enforceability under statute of 
frauds. Wells v. Brooks, 199 Miss. 327, 24 
So. 2d 533 (1946). 

A chattel mortgage given by parol on 
personal property of a value of $50 or 
more is valid although there has been no 
delivery of the property to the mortgagee. 
Burton v. Atkins, 199 Miss. 275, 24 So. 2d 
355 (1946). 

4. Oral proof that deed was intended 

to be a mortgage. 

Notwithstanding this section [Code 
1942, § 269], a deed absolute in form may 
be shown by parol evidence to be in reality 
a mortgage to secure a part of the pur- 
chase money advanced by the grantee 
therein on an agreement with the pur- 
chaser in possession of the land conveyed 
to him on payment of the sum so ad- 
vanced. Fultz v. Peterson, 78 Miss. 128, 28 
So. 829 (1900). 

5. Constructive or resulting trust. 

Real property purchased at foreclosure 
sale was not subject to constructive trusts, 
despite oral agreement that previous 
owner could repurchase property within 
90 days of foreclosure, in absence of show- 
ing that purchaser committed wrong and 
was unjustly enriched; previous owner 
originated arrangement, failed to perform 
agreement by not tendering purchase 
price within 90 days of foreclosure sale, 
and did not contribute funds used to pur- 
chase property at foreclosure sale. Dew v. 
Langford, 666 So. 2d 739 (Miss. 1995). 



Oral agreement by purchaser of land at 
foreclosure sale, to reconvey property to 
former owner upon payment of purchase 
price plus interest within 90 days of sale, 
was unenforceable option contract under 
statute of frauds; former owner failed to 
satisfy burden of proving exception to 
statute of frauds. Dew v. Langford, 666 So. 
2d 739 (Miss. 1995). 

The requirements of acknowledgment 
and recording are inapplicable to con- 
structive trusts under § 91-9-1. Alvarez v. 
Coleman, 642 So. 2d 361 (Miss. 1994). 

Where it appeared that for the purpose 
of placing his land beyond the reach of 
possible judgment creditors, the owner 
executed a deed to his land to another who 
in turn executed a power of attorney au- 
thorizing the owner to manage and collect 
rents from the property, and the owner 
reported on his income tax returns rent 
from the land as his own, as well as the 
long term capital gains derived from the 
sale of a part of the land, and took depre- 
ciation on the remaining land as if he was 
the sole owner thereof, there was no con- 
sideration for the deed from the owner to 
the other so that a subsequent grantee, to 
whom the property was conveyed after the 
owner's death, held the property in con- 
structive trust. Sunflower Farms, Inc. v. 
McLean, 233 Miss. 72, 101 So. 2d 355 
(1958). 

Constructive trusts may be proved by 
oral testimony. Triplett v. Bridgforth, 205 
Miss. 328, 38 So. 2d 756 (1949); Coleman 
v. Kierbow, 212 Miss. 541, 54 So. 2d 915 
(1951). 

A conveyance of property to carry out 
the terms of an oral trust in land is upon 
a consideration which the law recognizes 
and is valid against the creditors of the 
grantor, unless the effect is such as to give 
rise to the doctrine of estoppel. Detrio v. 
Boylan, 190 F.2d 40 (5th Cir. 1951). 

An oral promise and its subsequent 
breach, however disappointing and harm- 
ful, is not of itself enough to cause a court 
of chancery to declare a trust. Coleman v. 
Kierbow, 212 Miss. 541, 54 So. 2d 915 
(1951). 

There a cotenant bought the property at 
a tax sale there arose a trust by the 
operation of the law, and this section 
[Code 1942, § 269] does not require that 



244 



Trusts and Trustees 



§ 91-9-1 



such a trust should be in writing. Smith v. 
Smith, 211 Miss. 481, 52 So. 2d 1 (1951). 

If one buys land in the name of another 
and pays the consideration therefor, the 
land will be held by the grantee in trust 
for the benefit of him who advances the 
purchase money, and if there has been 
only a partial advance of the purchase 
money a trust will result pro tanto. 
Chichester v. Chichester, 209 Miss. 628, 
48 So. 2d 123 (1950). 

Constructive trust is mode by which 
courts of equity work out equity and pre- 
vent or circumvent fraud and overreach- 
ing. Pitchford v. Howard, 208 Miss. 567, 
45 So. 2d 142 (1950). 

Where trust will result in absence of 
express agreement, fact that such agree- 
ment is made will not prevent trust from 
arising. Pitchford v. Howard, 208 Miss. 
567, 45 So. 2d 142 (1950). 

A suit to establish a resulting trust 
arising out of the conveyance of land to a 
third party pursuant to an oral agreement 
whereby one person was to advance all 
funds necessary to purchase the land and 
another was to repay to him half of the 
amount, each to acquire an undivided 
one-half interest, with an understanding 
that the deed would be executed to such 
third party to be held by her until the loan 
was repaid, was maintainable under this 
section [Code 1942, § 269]. Shepherd v. 
Johnston, 201 Miss. 99, 28 So. 2d 661 
(1947). 

This section [Code 1942, § 269] did not 
preclude relief to the complainant by way 
of a conveyance of the land involved where 
a money lender paid the purchase price of 
land on behalf of the complainants who 
were then lessees in possession thereof, 
and took title thereof in his own name as 
security for the purchase price under an 
oral agreement to convey it to the com- 
plainant upon payment of the purchase 
price. Tanous v. White, 186 Miss. 556, 191 
So. 278 (1939). 

Upon refusal of devisee to carry out oral 
agreement to hold property for others a 
trust was created. Benbrook v. Yancy, 96 
Miss. 536, 51 So. 461 (1910). 

6. — Proof of fraud. 

Even if an oral promise to reconvey land 
should be clear and specific, it is not 
enforceable as such under the statute of 



frauds, although such a promise is a fact 
to be considered by the court, along with 
other facts and circumstances, in deter- 
mining whether the deed to the land was 
procured by fraud. Harris v. Armstrong, 
232 Miss. 192, 98 So. 2d 463 (1957). 

An enforceable trust will not arise from 
the mere breach of an oral promise to hold 
land in trust; there must be conduct influ- 
ential in producing the result and but for 
which such result would not have oc- 
curred amounting, in view of a court of 
equity, to fraud in order to save the case 
from the statute of frauds. Lipe v. Souther, 
224 Miss. 473, 80 So. 2d 471 (1955). 

When grantee or devisee obtains pos- 
session and title to land intended for an- 
other by actual fraud, on proof of the fraud 
a trust will be raised in favor of the latter, 
and the trust may be established by parol. 
Pitchford v. Howard, 208 Miss. 567, 45 So. 
2d 142 (1950). 

Active conduct on part of grantee to 
bring about conveyance, especially where 
there is fiduciary or confidential relation- 
ship between him and grantor, and grant- 
ee's subsequent failure to carry out his 
agreement or promise to hold in trust for 
reconveyance, tend to show fraud or bad 
faith on part of grantee, so as to raise 
constructive trust. Pitchford v. Howard, 
208 Miss. 567, 45 So. 2d 142 (1950). 

A trust which may be established by 
parol will be raised in favor of a party to 
whom land was intended to be granted or 
devised if another by actual fraud obtains 
a legal title thereto, but the trust can be 
established only upon clear convincing 
proof of the fraud. Moore v. Crump, 84 
Miss. 612, 37 So. 109 (1904). 

7. — As between husband and wife. 

Where wife gave to her husband pro- 
ceeds from the sale of her house and lot for 
use in his business, upon his oral promise 
that when his business permitted he 
would build her a home of her choice in 
Cleveland, but the husband's business did 
not prosper, and it was not shown that the 
husband used any of the wife's money in 
the purchase of the home in Cleveland, 
the husband did not hold title to the home 
in trust for the wife. Howell v. General 
Contract Corp., 229 Miss. 687, 91 So. 2d 
831 (1957), suggestion of error overruled, 



245 



§ 91-9-1 



Trusts and Estates 



opinion modified, 229 Miss. 687, 93 So. 2d 
175 (1957). 

Where a husband purchased mineral 
rights with joint funds of himself and his 
wife, taking legal title in his own name, a 
trust of one-half interest resulted in favor 
of wife, and the mineral rights and the 
income therefrom with the joint property 
of husband and wife, preventing any as- 
sessment of tax on such income against 
the husband alone. Stone v. Sample, 216 
Miss. 287, 62 So. 2d 307 (1953), error 
overruled 216 Miss. 287, 63 So. 2d 555. 

Where realty purchased by wife with 
her own personal funds is conveyed to her 
husband, the wife may enforce a resulting 
trust in her favor. Ryals v. Douglas, 205 
Miss. 695, 39 So. 2d 311 (1949). 

8. — As between mortgagor and mort- 
gagee. 

Bill stated good cause of action for cre- 
ation of implied trust by alleging that 
complainant, mortgagor, was prevented 
from obtaining money and paying debt 
secured by deed of trust before foreclosure 
sale by assurances of defendant that de- 
fendant would pay debt or purchase at 
sale for complainant who relied upon de- 
fendant's statements, and defendant pur- 
chased property through agent at sale, 
claimed it as his own and refused to con- 
vey to complainant, sale price being ap- 
proximately 50% of value of property. 
Triplett v. Bridgforth, 205 Miss. 328, 38 
So. 2d 756 (1949). 



Bill which alleges that holders of second 
mortgage on land received sufficient crops 
and personal property from mortgagors to 
discharge first mortgage, but wrongfully 
procured foreclosure of first mortgage and 
obtained deed from purchaser at foreclo- 
sure sale states a cause of action to have 
deed set aside and to hold grantee as 
trustee of land for benefit of complainants. 
Burton v. Gibbes, 204 Miss. 248, 37 So. 2d 
285 (1948). 

The oral expression of an intention by a 
mortgagee after he had purchased the 
land embraced in a deed of trust at fore- 
closure sale to control and operate the 
property for a certain purpose did not 
warrant setting aside the sale after it was 
discovered that he was claiming the prop- 
erty as his own. Harris v. Bailey Ave. 
Park, 202 Miss. 776, 32 So. 2d 689 (1947). 

Oral agreement of second mortgagee 
that if mortgagor would pay part of in- 
debtedness secured by first trust deed, 
and if third party would advance remain- 
der of indebtedness to prevent foreclosure 
of first trust deed, third party should have 
first lien on land covered, held valid and 
binding. Taylor v. Phillips, 182 Miss. 539, 
181 So. 855 (1938). 

Oral agreement made at request of 
mortgagor that land be sold under the 
deed of trust at a place other than that 
specified held not contract for sale of land 
nor declaration for creation of trust. Kelly 
v. Skates, 117 Miss. 886, 78 So. 945 (1918). 



RESEARCH REFERENCES 



ALR. Assertion of fiduciary status of 
party to litigation as basis for intervention 
by one claiming interest in fruits thereof 
as trust beneficiary. 2 A.L.R.2d 227. 

Implication of gift in inter vivos trust 
instrument. 11 A.L.R.2d 681. 

Purported conveyance or transfer, 
based on consideration, which is ineffec- 
tive to transfer the property, as subject of 
constructive trust, based on transferor's 
duty to complete the transfer. 12 A.L.R.2d 
961. 

Rights as between vendor and vendee 
under land contract in respect of interest. 
25 A.L.R.2d 951. 

Provision of will incorporating existing 
trust or making gift to the trustee as 



effective notwithstanding settlor's reser- 
vation of power to change or revoke. 12 
A.L.R.3d 56. 

Construction and operation of will or 
trust provision appointing advisors to 
trustee or executor. 56 A.L.R.3d 1249. 

Power of court to authorize modification 
of trust instrument because of changes in 
tax law. 57 A.L.R.3d 1044. 

Inclusion of funds in savings bank trust 
(Totten Trust) in determining surviving 
spouse's interest in decedent's estate. 64 
A.L.R.3d 187. 

Death of beneficiary as terminating or 
revoking trust of savings bank account 
over which settlor retains right of with- 
drawal or revocation. 64 A.L.R.3d 221. 



246 



Trusts and Trustees § 91-9-3 

Application of cy pres doctrine to trust CJS. 90 C.J.S., Trusts §§ 17 et seq. 

for promulgation of particular political or Practice References. Robinson and 

philosophical doctrines. 67 A.L.R.3d 417. Mobley, Pritchard on the Law of Wills and 

Exercise by will of trustor's reserved Administration of Estates, Fifth Edition 

power to revoke or modify inter vivos (Michie). 

trust. 81 A.L.R.3d 959. Burke, Friel, and Gagliardi, Modern Es- 

Liability of estate for tort of executor, tate Planning, Second Edition (Matthew 

administrator, or trustee. 82 A.L.R.3d Bender). 

892. Freeman and Rapkin, Planning for 

Validity, as for a charitable purpose, of Large Estates (Matthew Bender), 

trust for publication or distribution of Schoenblum, Estate Planning Forms 

particular books or writings. 34 A.L.R.4th and Clauses with CD Rom (Anderson Pub- 

419. lishing). 

Validity of voting trust created by will. Christensen, International Estate Plan- 

77 A.L.R.4th 1194. ning, Second Edition (Matthew Bender). 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 82 et Murphy's Will Clauses: Annotations 

seq. and Forms with Tax Effects (Matthew 

17A Am. Jur. Legal Forms 2d, Trusts Bender). 

§§ 251:1094.1 (client letter from attorney: Nossaman and Wyatt, Trust Adminis- 

duties and liabilities of trustee). tration and Taxation (Matthew Bender). 

31 Am. Jur. Proof of Facts 2d 229, Con- Bickel, Living Trusts: Forms and Prac- 

structive Trust Based on Confidential Re- tice (Matthew Bender), 

lationship Between Parties to Transfer of Estate Planning Package (CD-ROM) 

Property. (LexisNexis). 

§ 91-9-2. Trusts authorized to take title to real property. 

(1) All property originally brought into the trust or subsequently acquired 
by purchase or otherwise, on account of the trust, is trust property. 

(2) Unless the contrary intention appears, property acquired with trust 
funds is trust property. 

(3) Any estate in real property may be acquired in the trust name. Title to 
any property acquired by the trust shall be deemed to be vested in the trustee. 
Title so acquired can be conveyed only by the trustee. A conveyance in the trust 
name by the trustee shall be deemed to be a conveyance by the trustee. 

(4) A conveyance to a trust in the trust name, though without words of 
inheritance, passes the entire estate of the grantor unless a contrary intent 
appears. This subsection (4) shall apply to all conveyances to a trust in the 
trust name heretofore made, provided, however, any person having a cause of 
action, because of such conveyance as of July 1, 2002, may commence suit on 
such cause of action within one (1) year of said date, unless such cause of action 
be sooner barred by existing law, and not afterwards. 

SOURCES: Laws, 2002, ch. 393, § 1; Laws, 2003, ch. 442, § 1, eft from and after 
July 1, 2003. 

Amendment Notes — The 2003 amendment rewrote (3). 

§ 91-9-3. Assignments of trusts. 

All grants, assignments, or transfers of any trust or confidence shall 
likewise be in writing, signed by the party granting or assigning the same, or 

247 



§ 91-9-5 Trusts and Estates 

by last will and testament; or else they shall likewise be utterly void. Such 
grant or assignment shall also be acknowledged or proved and recorded, and 
shall only take effect from the time it, or a certificate thereof, is lodged with the 
clerk for record. 

SOURCES: Codes, 1857, ch. 44, art. 6; 1871, § 2897; 1880, § 1297; 1892, § 4231; 
Laws, 1906, § 4781; Hemingway's 1917, § 3125; Laws, 1930, § 3349; Laws, 
1942, § 270; Laws, 1993, ch. 507, § 3, eff from and after July 1, 1993. 

JUDICIAL DECISIONS 

1. In general. trust, does not apply to liens on real 

Absent a filing in accordance with § 91- property. Merchants Nat'l Bank v. Bank of 

9-3, a trustor's assignments to the trustee Miss., 584 So. 2d 433 (Miss. 1991). 

of interest in real or personal property The assignment of a promissory note, 

owned by the trust, were insufficient to secured by a recorded lien, although the 

attach a lien to the real property assets of ii en be transferred as an incident of the 

the trust. Section 75-9-302(l)(c), which debt, is not within this section [Code 1942, 

provides an exception to the filing require- § 2 70]. Klaus v. Moore, 77 Miss. 701, 27 

ment for a security interest created by an g g^2 (1900). 
assignment of a beneficial interest in a 

RESEARCH REFERENCES 

ALR. Validity, as for a charitable pur- 23 Am. Jur. PI & Pr Forms (Rev), Stat- 

pose, of trust for publication or distribu- ute of Frauds, Form 34 (answer alleging 

tion of particular books or writings. 34 as defense that oral contract to establish 

A.L.R.4th 419. trust of personal property violates appli- 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 82 et cable statute of frauds), 

seq. CJS. 90 C.J.S., Trusts §§ 17 et seq. 

§ 91-9-5. Filing or producing vouchers by trustees. 

In every case where a trustee is required by law or by the instrument 
creating the trust to present his account to the court, each such account shall 
be filed, examined, approved, and allowed by the court in the same way that 
the accounts of executors and administrators are examined, approved, and 
allowed; and the requirements for filing vouchers or producing the same for 
inspection shall be the same as the requirements in respect to the accounts of 
executors or administrators. 

Any record, voucher, claim, check, draft, receipt, writing, account, state- 
ment, note or other evidence which may be furnished, filed, probated, pre- 
sented or produced, or required to be produced, by a federally regulated bank, 
thrift or trust company shall be deemed to be an original admitted, furnished, 
filed, probated, presented, or produced for all purposes and with the same 
effect as the original, if such financial institution produces a copy of such 
evidence from a format of storage commonly used by financial institutions, 
whether electronic, imaged, magnetic, microphotographic or otherwise. 

SOURCES: Codes, 1942, § 1273-10; Laws, 1960, ch. 217, § 10; Laws, 1996, ch. 400, 
§ 44, eff from and after passage (approved March 19, 1996). 

248 



Trusts and Trustees § 91-9-7 

Cross References — Form of vouchers to be filed by executors and administrators, 
see § 91-7-279. 
Production of vouchers for inspection, see § 93-13-73. 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 405 CJS. 90A C.J.S., Trusts §§ 587 et seq. 
et seq. 

§ 91-9-7. Filing of certificate of trust agreement in lieu of 
entire trust agreement. 

(1) A certificate of a trust agreement which conveys or entrusts an interest 
in real property may be lodged for record with the clerk of the appropriate 
chancery court, in lieu of the entire trust agreement, in accordance with the 
provisions of this section. The certificate must be executed by the trustee and 
it must contain the following: (a) the name of the trust; (b) the street and 
mailing address of the office, and the name and street and mailing address of 
the trustee; (c) the name and street and mailing address of the grantor; (d) a 
legally sufficient description of all interests in real property owned by or 
conveyed to the trust; (e) the anticipated date of termination of the trust; and 
(f) the general powers granted to the trustee. 

(2) The trust shall be formed and take full effect as of the filing of the 
certificate of trust in the office of the chancery clerk. For all purposes, a copy 
of the certificate of trust, duly recorded, is conclusive evidence of the formation 
of a trust and prima facie evidence of its existence. Any person, who in good 
faith deems it necessary to review the terms and conditions of the trust, shall 
be entitled to inspect the trust agreement in the office of the trustee upon 
reasonable notification. 

(3) If the trustee does not allow a person to inspect the trust agreement as 
provided in subsection (2) of this section within thirty (30) days after 
reasonable notification, such person may petition a court of competent juris- 
diction to compel the trustee to produce the trust agreement for inspection by 
the petitioner. In the event such court grants the petition all necessary costs 
incurred by the petitioner, including reasonable attorney's fees, shall be taxed 
against the trustee. 

(4) The certificate of trust may be amended by filing a certificate of 
amendment thereto with the chancery clerk. The certificate of amendment 
shall set forth the amendment to the original certificate with particularity and 
the future effective date of the amendment, which must be a date certain. Each 
certificate of amendment filed under this subsection must be executed in the 
following manner: (a) the original certificate of trust must be signed and 
acknowledged by the trustee; (b) the certificate of amendment must be 
acknowledged in a manner that is suitable for recordation; and (c) the 
certificate of amendment must be filed in the office of the chancery clerk where 
the original trust or certificate of trust is recorded. 

SOURCES: Laws, 1993, ch. 507, § 1; Laws, 2001, ch. 425, § 1, eff from and after 
July 1, 2001. 

249 



§ 91-9-9 Trusts and Estates 

Cross References — Requirement that certificate of trust be logged with clerk of 
chancery court to be recorded, see § 91-9-1. 

§ 91-9-9. Powers of fiduciaries to promote compliance with 
environmental laws; court approval; costs; definitions; stan- 
dard of conduct. [Repealed effective July 1, 2008]. 

(1) In addition to powers, remedies and rights which may be set forth in 
any will, trust agreement or other document which is the source of authority, 
a trustee, executor, administrator, guardian, or one acting in any other 
fiduciary capacity, whether an individual, corporation or other entity ("fidu- 
ciary") shall have the following powers, rights and remedies whether or not set 
forth in the will, trust agreement or other document which is the source of 
authority: 

(a) To inspect, investigate or cause to be inspected and investigated, 
property held by the fiduciary, including interests in sole proprietorships, 
partnerships, or corporations and any assets owned by any such business 
enterprise, for the purpose of determining compliance with any environmen- 
tal law affecting such property and to respond to any actual or potential 
violation of any environmental law affecting property held by the fiduciary; 

(b) To take on behalf of the estate or trust, any action necessary to 
prevent, abate, or otherwise remedy any actual or potential violation of any 
environmental law affecting property held by the fiduciary, either before or 
after the initiation of an enforcement action by any governmental body; 

(c) To refuse to accept property in trust if the fiduciary determines that 
any property to be donated or conveyed to the trust either is contaminated 
by any hazardous substance, or is being used or has been used for any 
activity directly or indirectly involving any hazardous substance, which 
could result in liability to the trust or otherwise impair the value of the 
assets held therein; 

(d) To settle or compromise at any time any and all claims against the 
trust or estate which may be asserted by any governmental body or private 
party involving the alleged violation of any environmental law affecting 
property held in trust or in an estate; 

(e) To disclaim any power granted by any document, statute, or rule of 
law which, in the sole discretion of the fiduciary, may cause the fiduciary to 
incur personal liability under any environmental law; 

(f) To decline to serve as a fiduciary, if the fiduciary reasonably believes 
that there is or may be a conflict of interest between the fiduciary in its or his 
fiduciary capacity and in its or his individual capacity, because of potential 
claims or liabilities which may be asserted against the fiduciary on behalf of 
the trust or estate due to the type or condition of assets held therein. 

(2) An administrator, executor, guardian or conservator is not relieved 
under this chapter from obtaining court approval for any actions which 
otherwise are required to be approved by a court. 

(3) The fiduciary shall be entitled to charge the cost of any inspection, 
investigation, review, abatement, response, cleanup, or remedial action autho- 

250 



Trusts and Trustees § 91-9-101 

rized herein against the income or principal of the trust or estate. A fiduciary 
shall not be personally liable to any beneficiary or other party for any decrease 
in value of assets in trust or in an estate by reason of the fiduciary's compliance 
or efforts to comply with any environmental law, specifically including any 
reporting requirement under such law. Neither the acceptance by the fiduciary 
of property or a failure by the fiduciary to inspect or investigate property shall 
be deemed to create any inference as to whether there is or may be any liability 
under any environmental law with respect to such property 

(4) For purposes of this section, "environmental law" means any federal, 
state, or local law, rule, regulation, or ordinance relating to protection of the 
environment or human health. For purposes of this section, "hazardous 
substances" means any substance defined as hazardous or toxic or otherwise 
regulated by any environmental law. 

(5) A fiduciary in its or his individual capacity shall not be considered an 
owner or operator of any property of the trust or estate for the purposes of any 
environmental law. 

(6) Notwithstanding any other provision of this chapter, the fiduciary is 
subject at all times to the provisions of the Prudent Man Standard in all its 
dealings. 

(7) The provisions of this section shall stand repealed from and after July 
1, 2008. 

SOURCES: Laws, 1994, ch. 589, § 1; reenacted and amended, Laws, 1999, ch. 
374, § 3; reenacted and amended, Laws, 2002, ch. 613 , § 1, eff from and 
after July 1, 2002. 

Editor's Note — Laws, 1994, ch. 589, § 6 provided for the repeal of this section on 
July 1, 2001. Laws, 1999, ch. 374, § 6 amended Laws, 1994, ch. 589, § 6 by deleting the 
repealer. 

Amendment Notes — The 2002 amendment substituted "July 1, 2008" for "July 1, 
2002" in (7). 

Article 3. 
Uniform Trustees' Powers. 

Sec. 

91-9-101. Citation of article. 

91-9-103. Definitions. 

91-9-105. Powers of trustee conferred by trust or by law. 

91-9-107. Powers of trustee conferred by this article. 

91-9-109. Trustee's office not transferable. 

91-9-111. Power of court. 

91-9-113. Powers exercisable by joint trustees. 

91-9-115. Third persons protected in dealing with trustee. 

91-9-117. Application of article. 

91-9-119. Uniformity of interpretation. 

§ 91-9-101. Citation of article. 

This article may be cited as the "Uniform Trustees' Powers Law". 

251 



§ 91-9-103 Trusts and Estates 

SOURCES: Codes, 1942, § 672-130; Laws, 1966, ch. 372, § 10, eff from and after 
June 30, 1966. 

RESEARCH REFERENCES 

Am Jur. Am. Jur. 2d Desk Book, Doc. 
No. 129, Jurisdictions adopting Uniform 
Trustees' Powers Law. 

§ 91-9-103. Definitions. 

The following words when used in this article shall have the following 
meanings: 

(a) "Trust" means an express trust created by a trust instrument, 
including a will, whereby a trustee has the duty to administer a trust asset 
for the benefit of a named or otherwise described income or principal 
beneficiary, or both; "trust" does not include a resulting or constructive trust, 
a business trust which provides for certificates to be issued to the beneficiary, 
an investment trust, a voting trust, a security instrument, a trust created by 
the judgment or decree of a court, a liquidation trust, or a trust for the 
primary purpose of paying dividends, interests, interest coupons, salaries, 
wages, pensions, profits, or employee benefits of any kind, an instrument 
wherein a person is nominee or escrowee for another, a trust created in 
deposits in any financial institution, or other trust the nature of which does 
not admit of general trust administration. 

(b) "Trustee" means an original, added, or successor trustee; and in the 
case of a corporate trustee, includes its successor by merger or consolidation. 

(c) "Prudent man" means a trustee whose exercise of trust powers is 
reasonable and equitable in view of the interests of income or principal 
beneficiaries, or both, and in view of the manner in which men of ordinary 
prudence, diligence, discretion, and judgment would act in the management 
of their own affairs. 

SOURCES: Codes, 1942, § 672-121; Laws, 1966, ch. 372, § 1, eff from and after 
June 30, 1966. 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 1 et §§ 251:1094.1 (client letter from attorney: 
seq. duties and liabilities of trustee). 

17A Am. Jur. Legal Forms 2d, Trusts CJS. 90 C.J.S., Trusts §§ 1 et seq. 

§ 91-9-105. Powers of trustee conferred by trust or by law. 

The trustee has all powers conferred upon him by the provisions of this 
article unless limited in the trust instrument. 

An instrument which is not a trust under Section 9 1-9- 103(a) may 
incorporate any part of this article by reference. 

252 



Trusts and Trustees § 91-9-107 

SOURCES: Codes, 1942, § 672-122; Laws, 1966, ch. 372, § 2, eff from and after 
June 30, 1966. 

RESEARCH REFERENCES 

Am Jur. 17A Am. Jur. Legal Forms 2d, 
Trusts §§ 251:1094.1 (client letter from 
attorney: duties and liabilities of trustee). 

§ 91-9-107. Powers of trustee conferred by this article. 

(1) From time of creation of the trust until final distribution of the assets 
of the trust, a trustee has the power to perform, without court authorization, 
every act which a prudent man would perform for the purposes of the trust, 
including, but not limited to: 

(a) The powers specified in subsection (3) of this section, and 

(b) Those powers, rights and remedies set forth in Section 91-9-9, 
related to compliance with environmental laws affecting property held by 
fiduciaries. The provisions of this paragraph (b) shall stand repealed from 
and after July 1, 2008. 

(2) In the exercise of his powers, including the powers granted by this 
article, a trustee has a duty to act with due regard to his obligation as a 
fiduciary. 

(3) A trustee has the power, subject to subsections (1) and (2): 

(a) To collect, hold and retain trust assets received from a trustor until, 
in the judgment of the trustee, disposition of the assets should be made; and 
the assets may be retained even though they include an asset in which the 
trustee is personally interested; 

(b) To receive additions to the assets of the trust; 

(c) To continue or participate in the operation of any business or other 
enterprise, and to effect incorporation, dissolution or other change in the 
form of the organization of the business or enterprise; 

(d) To acquire an undivided interest in a trust asset in which the 
trustee, in any trust capacity, holds an undivided interest; 

(e) To invest and reinvest trust assets in accordance with the provisions 
of the trust or as provided by law; 

(f) To deposit trust funds in a bank, including a bank operated by the 
trustee; 

(g) To acquire or dispose of an asset, for cash or on credit, at public or 
private sale; and to manage, develop, improve, exchange, partition, change 
the character of, or abandon a trust asset or any interest therein; and to 
encumber, mortgage or pledge a trust asset for a term within or extending 
beyond the term of the trust, in connection with the exercise of any power 
vested in the trustee; 

(h) To make ordinary or extraordinary repairs or alterations in build- 
ings, improvements or other structures; to demolish any improvements; to 
raze existing or erect new party walls, buildings or improvements; 

253 



§ 91-9-107 Trusts and Estates 

(i) To subdivide, develop or dedicate land to public use; or to make or 
obtain the vacation of plats and adjust boundaries; or to adjust differences in 
valuation on exchange or partition by giving or receiving consideration; or to 
dedicate easements to public use without consideration; 

(j) To enter for any purpose into a lease as lessor or lessee with or 
without option to purchase or renew for a term within or extending beyond 
the term of the trust; 

(k) To enter into a lease or arrangement for exploration and removal of 
minerals or other natural resources, or enter into a pooling or unitization 
agreement; 

(/) To grant an option involving disposition of a trust asset, or to take an 
option for the acquisition of any asset; 

(m) To vote a security, in person or by general or limited proxy; 

(n) To pay calls, assessments and any other sums chargeable or accru- 
ing against or on account of securities; 

(o) To sell or exercise stock subscription or conversion rights; to consent, 
directly or through a committee or other agent, to the reorganization, 
consolidation, merger, dissolution or liquidation of a corporation or other 
business enterprise; 

(p) To hold a security in the name of a nominee or in other form without 
disclosure of the trust, so that title to the security may pass by delivery, but 
the trustee is liable for any act of the nominee in connection with the stock 
so held; 

(q) To insure the assets of the trust against damage or loss, and the 
trustee against liability with respect to third persons; 

(r) To borrow money to be repaid from trust assets or otherwise; to 
advance money for the protection of the trust and for all expenses, losses and 
liability sustained in the administration of the trust or because of the 
holding or ownership of any trust assets, for which advances with any 
interest the trustee has a lien on the trust assets as against the beneficiary; 

(s) To pay or contest any claim; to settle a claim by or against the trust 
by compromise, arbitration or otherwise; and to release, in whole or in part, 
any claim belonging to the trust to the extent that the claim is uncollectible; 

(t) To pay taxes, assessments, compensation of the trustee, and other 
expenses incurred in the collection, care, administration and protection of 
the trust; 

(u) To allocate items of income or expense to either trust income or 
principal, as provided by law, including creation of reserves out of income for 
depreciation, obsolescence or amortization, or for depletion in mineral or 
timber properties; 

(v) To pay any sum distributable to a beneficiary under legal disability, 
without liability to the trustee, by paying the sum to the beneficiary or by 
using same for his benefit or by paying the sum for the use of the beneficiary 
either to a legal representative appointed by the court, or if none, to a 
relative or to an adult person with whom beneficiary is residing, who is 
believed to be reliable by trustee; 

254 



Trusts and Trustees § 91-9-107 

(w) To effect distribution of property and money in divided or undivided 
interests and to adjust resulting differences in valuation; 

(x) To employ persons, including attorneys, auditors, investment advi- 
sors or agents, even if they are associated with the trustee, to advise or assist 
the trustee in the performance of his administrative duties; to act without 
independent investigation upon their recommendations; and instead of 
acting personally, to employ one or more agents to perform any act of 
administration, whether or not discretionary; 

(y) To prosecute or defend actions, claims or proceedings for the 
protection of trust assets and of the trustee in the performance of his duties; 
(z) To execute and deliver all instruments which will accomplish or 
facilitate the exercise of the powers vested in the trustee. 

(4) If a trustee has determined that either (a) the market value of a trust 
is less than One Hundred Fifty Thousand Dollars ($150,000.00) and that, in 
relation to the costs of administration of the trust, the continuance of the trust 
pursuant to its existing terms will defeat or substantially impair the accom- 
plishment of the purposes of the trust; or (b) the trust no longer has a 
legitimate purpose or that its purpose is being thwarted with respect to any 
trust in any amount; then the trustee may seek court approval to terminate the 
trust and the court, in its discretion, may approve such termination. In such a 
case, the court may provide for the distribution of trust property, including 
principal and undistributed income, to the beneficiaries in a manner which 
conforms as nearly as possible to the intention of the settlor and the court shall 
make appropriate provisions for the appointment of a guardian in the case of 
a minor beneficiary. 

(5)(a) Unless expressly provided to the contrary in the trust instrument, 
a trustee may consolidate two (2) or more trusts having substantially similar 
terms into a single trust; divide on a fractional basis a single trust into two 
(2) or more separate trusts for any reason; and may segregate by allocation 
to a separate account or trust a specific amount from, a portion of, or a 
specific asset included in the trust property of any trust to reflect a 
disclaimer, to reflect or result in differences in federal tax attributes, to 
satisfy any federal tax requirement, to make federal tax elections, to reduce 
potential generation-skipping transfer tax liability, or for any other tax 
planning purposes or other reasons. 

(b) A separate trust created by severance or segregation must be 
treated as a separate trust for all purposes from the effective date in which 
the severance or segregation is effective. The effective date of the severance 
or segregation may be retroactive. In managing, investing, administering 
and distributing the trust property of any separate account or trust and in 
making applicable tax elections, the trustee may consider the differences in 
federal tax attributes and all other factors the trustee believes pertinent and 
may make disproportionate distributions from the separate trusts or ac- 
counts created. 

(c) A trust or account created by consolidation, severance or segregation 
under this subsection (5) must be held on terms and conditions that are 

255 



§ 91-9-107 Trusts and Estates 

substantially equivalent to the terms of the trust before consolidation, 
severance or segregation so that the aggregate interests of each beneficiary 
are substantially equivalent to the beneficiary's interests in the trust or 
trusts before consolidation, severance or segregation. In determining 
whether a beneficiary's aggregate interests are substantially equivalent, the 
trustee shall consider the economic value of those interests to the extent they 
can be valued, considering actuarial factors as appropriate. If a beneficiary's 
interest cannot be valued with any reasonable degree of certainty because of 
the nature of the trust property, the terms of the trust, or other reasons, the 
trustee shall base the determination upon such other factors as are reason- 
able and appropriate under the facts and circumstances applicable to that 
particular trust, including the purposes of the trust. Provided, however, the 
terms of any trust before consolidation, severance or segregation which 
permit qualification of that trust for an applicable federal tax deduction, 
exclusion, election, exemption, or other special federal tax status must 
remain identical in the consolidated trust or in each of the separate trusts or 
accounts created by severance or segregation. 

(d) A trustee who acts in good faith is not liable to any person for taking 
into consideration differences in federal tax attributes and other pertinent 
factors in administering trust property of any separate account or trust, in 
making tax elections, and making distributions pursuant to the terms of the 
separate trust. 

(e) Income earned on a consolidated or severed or segregated amount, 
portion, or specific asset after the consolidation or severance is effective 
passes with that amount, portion or specific asset. 

(f) This subsection (5) applies to all trusts whenever created, whether 
before, on, or after July 1, 2001, and whether such trusts are inter vivos or 
testamentary, are created by the same or different instruments, by the same 
or different persons and regardless of where created or administered. 

(g) This subsection (5) does not limit the right of a trustee acting in 
accordance with the applicable provisions of the governing instrument to 
divide or consolidate trusts. 

(h) Nothing contained in this subsection (5) shall be construed as 
granting to any trustee a general power of appointment over any trust not 
otherwise expressly granted in the trust instrument. 

SOURCES: Codes, 1942, § 672-123; Laws, 1966, ch. 372, § 3; Laws, 1990, ch. 547, 
§ 1; Laws, 1994, ch. 589, § 2; Laws, 1999, ch. 374, § 4; Laws, 2001, ch. 471, § 1; 
Laws, 2002, ch. 616 , § 1, eff from and after July 1, 2002. 

Amendment Notes — The 2002 amendment substituted "July 1, 2008" for "July 1, 
2002" in (l)(b). 

Cross References — Investment trusts, see §§ 79-15-1 et seq. 
Investment by trustees generally, see §§ 91-13-1 et seq. 



256 



Trusts and Trustees 



§ 91-9-109 



JUDICIAL DECISIONS 



1. In general. 

Trustee of perpetual care trust was en- 
titled to reasonable attorney fees for work 
performed in connection with trustee sub- 
stitution; trustee had duty to see that 
interests of beneficiaries were protected 
until valid substitution had occurred, no 
bond had been filed and successor trustee 
was not yet incorporated, and trustee had 
reason to suspect financial and legal in- 
tegrity of substitute trustee. Bank of Miss, 
v. Southern Mem. Park, 677 So. 2d 186 
(Miss. 1996). 

Denial of requested attorney fees, in- 
curred by perpetual trust trustee while 
new cemetery owner attempted to substi- 
tute trustee, resolved question of law that 
was subject to de novo review on appeal. 
Bank of Miss. v. Southern Mem. Park, 677 
So. 2d 186 (Miss. 1996). 

Requests for attorney fees to be paid out 
of trust income must be carefully scruti- 



nized to determine whether fees are fair in 
relation to amount of work done, whether 
trusts would be able to continue to per- 
form stated functions if expenses were 
allowed, as well as considering impor- 
tance of interest of beneficiaries which 
trustee was seeking to protect. Bank of 
Miss. v. Southern Mem. Park, 677 So. 2d 
186 (Miss. 1996). 

Chancellor has discretion to deny attor- 
ney fees in their entirety in cases involv- 
ing misuse of trust assets to generate 
legal fees or to promote some interest of 
trustee. Bank of Miss. v. Southern Mem. 
Park, 677 So. 2d 186 (Miss. 1996). 

Remand was required to determine rea- 
sonable amount of attorney fees to award 
perpetual trust trustee, incurred to en- 
sure proper substitution of trustee by new 
cemetery owner. Bank of Miss. v. Southern 
Mem. Park, 677 So. 2d 186 (Miss. 1996). 



RESEARCH REFERENCES 



ALR. Amount of attorneys' compensa- 
tion in matters involving guardianship 
and trusts. 57 A.L.R.3d 550. 

Liability of testamentary trustee for 
failure to assert claim against executor of 
testator's estate for mistake resulting in 
overpayment of taxes. 68 A.L.R.3d 1265. 

Standard of care required of trustee 
representing itself to have expert knowl- 
edge or skill. 91 A.L.R.3d 904. 

Liability of trustee for payments or con- 
veyances under a trust subsequently held 
to be invalid. 77 A.L.R.4th 1177. 



Am Jur. 76 Am. Jur. 2d, Trusts §§ 339 
et seq, 476 et seq. 

24 Am. Jur. PI & Pr Forms (Rev), 
Trusts, Form 394.1 (Beneficiary's consent 
— To trustee's petition for order approving 
accounts). 

17A Am. Jur. Legal Forms 2d, Trusts 
§§ 251:1094.1 (client letter from attorney: 
duties and liabilities of trustee). 

CJS. 90A C.J.S., Trusts §§ 318 et seq., 
482 et seq. 



§ 91-9-109. Trustee's office not transferable. 

The trustee shall not transfer his office to another or delegate the entire 
administration of the trust to a cotrustee or another. 

SOURCES: Codes, 1942, § 672-124; Laws, 1966, ch. 372, § 4, eff from and after 
June 30, 1966. 

Cross References — Resignation and succession of trustees generally, see §§ 91- 
9-201 et seq. 



257 



§ 91-9-111 Trusts and Estates 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 251, CJS. 89 C.J.S., Trusts §§ 343 et seq. 

262. 

§ 91-9-111. Power of court. 

This article does not affect the power of a court of competent jurisdiction, 
for cause shown and upon petition of the trustee or affected beneficiary and 
upon appropriate notice to the affected parties, to relieve a trustee from any 
restrictions on his power that would otherwise be placed upon him by the trust 
or by this article. 

If the duty of the trustee and his individual interest, or his interest as 
trustee of another trust, conflict in the exercise of a trust power, the power may 
be exercised only by court authorization (except as provided in Section 
91-9-107(3)(a), (d), (f), (r), and (x) upon petition of the trustee. Under this 
section, personal profit or advantage to an affiliated or subsidiary company or 
association is profit to any corporate trustee. 

SOURCES: Codes, 1942, § 672-125; Laws, 1966, ch. 372, § 5, eff from and after 
June 30, 1966. 

RESEARCH REFERENCES 

ALR. Power of court to authorize mod- 
ification of trust instrument because of 
changes in tax law. 57 A.L.R.3d 1044. 

§ 91-9-113. Powers exercisable by joint trustees. 

Any power vested in three (3) or more trustees may be exercised by a 
majority, but a trustee who has not joined in exercising a power is not liable to 
the beneficiaries or to others for the consequences of the exercise; and a 
dissenting trustee is not liable for the consequences of an act in which he joins 
at the direction of the majority of the trustees, if he expressed his dissent in 
writing to any of his cotrustees at or before the time of the joinder. 

If two (2) or more trustees are appointed to perform a trust, and if any of 
them is unable or refuses to accept the appointment or, having accepted, ceases 
to be a trustee, the surviving or remaining trustees shall perform the trust and 
succeed to all the powers, duties, and discretionary authority given to the 
trustees jointly. 

This section does not excuse a cotrustee from liability for failure either to 
participate in the administration of the trust or to attempt to prevent a breach 
of trust. 

SOURCES: Codes, 1942, § 672-126; Laws, 1966, ch. 372, § 6, eff from and after 
June 30, 1966. 



258 



Trusts and Trustees § 91-9-117 

RESEARCH REFERENCES 
Am Jur. 76 Am. Jur. 2d, Trusts § 251. CJS. 89 C.J.S., Trusts §§ 345, 346. 

§ 91-9-115. Third persons protected in dealing with trustee. 

With respect to a third person dealing with a trustee or assisting a trustee 
in the conduct of a transaction, the existence of trust powers and their proper 
exercise by the trustee may be assumed without inquiry The third person is 
not bound to inquire whether the trustee has power to act or is properly 
exercising the power; and a third person, without actual knowledge that the 
trustee is exceeding his powers or improperly exercising them, is fully 
protected in dealing with the trustee as if the trustee possessed and properly 
exercised the powers he purports to exercise. A third person is not bound to 
assure the proper application of trust assets paid or delivered to the trustee. 

SOURCES: Codes, 1942, § 672-127; Laws, 1966, ch. 372, § 7, eff from and after 
June 30, 1966. 

JUDICIAL DECISIONS 

1. In general. his personal account did not give bank 
"Actual knowledge" of trustee's wrong- actual knowledge of trustee's conduct, re- 
doing, required to impose liability on third quired to impose liability on bank for 
party for breach of trustee's fiduciary duty trustee's embezzlement. Collier v. 
is awareness at moment of transaction Trustmark Nat'l Bank, 678 So. 2d 693 
that trustee is acting fraudulently; it (Miss. 1996). 

means express factual information that Bank is protected in dealings with fidu- 

funds are being used for private purposes ciaries unless bank has actual knowledge 

in violation of fiduciary relationship. Col- that fiduciary is improperly exercising or 

lier v. Trustmark Nat'l Bank, 678 So. 2d exceeding its authority; constructive 

693 (Miss. 1996). knowledge or notice is insufficient. Collier 

Trustee's conduct in writing checks on v. Trustmark Nat'l Bank, 678 So. 2d 693 

trust accounts and depositing them into (Miss. 1996). 

RESEARCH REFERENCES 

ALR. Liability of trustee for payments quently held to be invalid. 77 A.L.R.4th 
or conveyances under a trust subse- 1177. 

§ 91-9-117. Application of article. 

Except as specifically provided in the trust, the provisions of this article 
apply to any trust established before or after June 30, 1966, and to any trust 
asset acquired by the trustee before or after said date; provided, however, the 
provisions of Section 91-9-107(3)(g) shall not apply to any trust instrument 
dated before such date. 

SOURCES: Codes, 1942, § 672-128; Laws, 1966, ch. 372, § 8, eff from and after 
June 30, 1966. 



259 



§ 91-9-119 Trusts and Estates 

§ 91-9-119. Uniformity of interpretation. 

This article shall be construed to effectuate its general purpose to make 
uniform the law of those states which enact a statute containing substantially 
the same provisions as herein contained. 

SOURCES: Codes, 1942, § 672-129; Laws, 1966, ch. 372, § 9, eff from and after 
June 30, 1966. 

Article 5. 
Resignation and Succession of Trustees. 

Sec. 

91-9-201. Application of article; trustee denned. 

91-9-203. Resignation of trustee and appointment of successor. 

91-9-205. Accounting and discharge of trustee. 

91-9-207. Title, right, and powers of successor trustee. 

91-9-209. Beneficiary under disability. 

91-9-211. Jurisdiction. 

91-9-213. General powers of courts not affected. 

§ 91-9-201. Application of article; trustee denned. 

The following provisions are hereby made applicable to trustees of express 
trusts, whether inter vivos or testamentary, unless the instrument creating 
any such trust expressly provides to the contrary. "Trustee," whether one or 
more, means an original, added, or successor trustee, and whether an individ- 
ual or corporate trustee. 

SOURCES: Codes, 1942, § 672-151; Laws, 1966, ch. 373, § 1, eff from and after 
passage (approved May 6, 1966). 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts § 240. CJS. 89 C.J.S., Trusts § 2. 

17A Am. Jur. Legal Forms 2d, Trusts 
§ 251:712. 

§ 91-9-203. Resignation of trustee and appointment of succes- 
sor. 

Any trustee has the right to resign at any time by giving at least thirty (30) 
days' written notice to that effect, specifying the effective date of such 
resignation, to the beneficiaries, at the time of giving notice, of the current 
income of the trust property and to the beneficiaries of the principal of the trust 
whose interests are then vested. If a trustee at any time resigns or is unable to 
act for any reason, a successor trustee may be appointed by an instrument 
delivered to such successor, with a copy to the existing trustee, and signed by 
the beneficiaries, at the time of such appointment, of more than one half (Vfe) of 
the current income of the trust property and by the beneficiaries of more than 

260 



Trusts and Trustees § 91-9-205 

one half (V2) of that portion of the principal of the trust which is then vested, 
if any there be. In the event such beneficiary or beneficiaries shall fail to 
designate a successor trustee within the time specified, the then acting trustee 
or any other party in interest may petition a court of competent jurisdiction for 
the appointment of a successor and the judicial settlement of the accounts of 
the then acting trustee. In any court proceeding to designate a successor 
trustee or to settle the accounts of the existing trustee, only the beneficiaries 
then entitled to participate in income and those principal beneficiaries who 
have a vested interest in the trust estate shall be necessary parties thereto. 
Any action therein by or against such beneficiaries or parties shall be binding 
on all persons, either in being or not, who have or may have any interest in the 
trust; and hearing thereon may be had at any time before the court or before 
a judge thereof in vacation. 

SOURCES: Codes, 1942, § 672-152; Laws, 1966, ch. 373, § 2, eff from and after 
passage (approved May 6, 1966). 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 128, CJS. 89 C.J.S., Trusts §§ 303 et seq., 
132 et seq. 341. 

17A Am. Jur. Legal Forms 2d, Trusts 
§§ 251:651 et seq (resignation and re- 
moval). 

§ 91-9-205. Accounting and discharge of trustee. 

The delivery by the trustee to the successor trustee of all property 
comprising the trust and the receipt of the successor therefor, accompanied by 
an approval of the trustee's accounting by the beneficiaries who appointed the 
successor trustee or by a court of competent jurisdiction, shall constitute a 
complete acquittal and discharge of the trustee. In the event the designation of 
a successor trustee is accomplished without court action, then the beneficiaries 
shall be deemed to have approved the accounting of the trustee ninety (90) 
days after a copy of said accounting has been mailed, postage prepaid, to the 
last known address of each income beneficiary and each principal beneficiary 
who has a vested interest in the trust, unless within said time such beneficiary 
shall notify the trustee in writing of his specific objections to the account. 

SOURCES: Codes, 1942, § 672-153; Laws, 1966, ch. 373, § 3, eff from and after 
passage (approved May 6, 1966). 

RESEARCH REFERENCES 

ALR. Liability of estate for tort of exec- Am Jur. 76 Am. Jur. 2d, Trusts §§ 127, 
utor, administrator, or trustee. 82 129 et seq., 505 et seq. 
A.L.R.3d 892. CJS. 89 C.J.S., Trusts §§ 587 et seq. 



261 



§ 91-9-207 Trusts and Estates 

§ 91-9-207. Title, right, and powers of successor trustee. 

Every successor trustee shall have all the title, rights, powers, and 
discretion given the original trustee in the trust instrument or by law, without 
any act of conveyance or transfer. 

SOURCES: Codes, 1942, § 672-154; Laws, 1966, ch. 373, § 4, eff from and after 
passage (approved May 6, 1966). 

§ 91-9-209. Beneficiary under disability. 

The guardian or conservator of the estate of a beneficiary under legal 
disability, or the parents or surviving parent or parent having custody of a 
minor beneficiary for whose estate no guardian has been appointed, may be 
given any notice provided for in this article and may act for such beneficiary in 
making any appointment, approving any accounting, and giving any direction 
under this article. Any such notice, appointment, approval, or other direction 
shall be fully binding on the beneficiary. 

SOURCES: Codes, 1942, § 672-155; Laws, 1966, ch. 373, § 5, eff from and after 
passage (approved May 6, 1966). 

Cross References — Guardians generally, see §§ 93-13-1 et seq. 

RESEARCH REFERENCES 

ALR. Guardian's authority, without 
seeking court approval, to exercise ward's 
right to revoke trust. 53 A.L.R.4th 1297. 

§ 91-9-211. Jurisdiction. 

Jurisdiction to settle the accounts of a trustee who may resign and to 
appoint a successor is vested in the chancery court of the county in which the 
will of the deceased has been probated in the case of a testamentary trust 
where the will is probated in this state, and in the chancery court of the county 
of the residence of the grantor or settlor in the case of an inter vivos trust when 
the grantor or settlor is a resident of this state at the time of creating the trust. 
In all other cases such jurisdiction is vested in the chancery court of the county 
of the residence of the individual trustee, or one of them, or of the county in 
which the office, or one of the offices, of a corporate trustee is located. The 
hearing on such matters may be conducted either in term time or by a judge of 
such court in vacation. 

SOURCES: Codes, 1942, § 672-156; Laws, 1966, ch. 373, § 6, eff from and after 
passage (approved May 6, 1966). 

Cross References — Jurisdiction of chancery court generally, see § 9-5-81. 



262 



Trusts and Trustees § 91-9-301 

§ 91-9-213. General powers of courts not affected. 

Nothing contained in this article shall be construed to affect or limit the 
power that may be vested in a court of competent jurisdiction to permit a 
trustee to take any action authorized by it, or to restrain a trustee from taking 
any action prohibited by a decree of such court, notwithstanding the permis- 
sions or restrictions contained in any written instrument under which such 
trustee is acting. 

SOURCES: Codes, 1942, § 672-157; Laws, 1966, ch. 373, § 7, eff from and after 
passage (approved May 6, 1966). 

Article 7. 
Removal of Trustees. 

Sec. 

91-9-301. Definitions. 

91-9-303. Proceedings for removal of trustees and appointment of successor. 

91-9-305. Powers of court in removal proceedings. 

§ 91-9-301. Definitions. 

When used in this article, the following words and phrases shall have the 
meanings ascribed to them hereby: 

(a) Trusts. — For the purposes of this article, the term "trust" shall be 
limited to express or implied trusts created for educational, charitable, or 
religious purposes where all or a substantial part of the corpus thereof shall 
have been contributed by the local beneficiaries (as hereinafter defined), or 
by their predecessor beneficiaries; and where said corpus shall consist of real 
or personal property situated within the State of Mississippi. This article 
shall have no application to private trusts, either express or implied; to 
trusts administered by any public governmental authority; or to trusts for 
educational, charitable, or religious purposes where all or a substantial 
portion of the corpus shall not have been contributed by the local beneficia- 
ries thereof, or by their predecessor beneficiaries. 

(b) Local beneficiaries. — For purposes of this article, the term "local 
beneficiaries" shall mean those persons residing within the State of Missis- 
sippi who shall have contributed (or whose predecessor beneficiaries shall 
have contributed) all or a substantial part of the corpus of the trust, as above 
defined, and who shall locally, immediately, and directly enjoy the benefits of 
such trust. 

(c) Majority of beneficiaries. — For purposes of this article, the term 
"majority of beneficiaries" shall be defined as sixty-six and two-thirds per 
cent (66%) of the adult local beneficiaries residing within the State of 
Mississippi and enjoying locally and immediately and directly the benefits of 
such trust. 

SOURCES: Codes, 1942, § 1273-01; Laws, 1960, ch. 221, § 1, eff from and after 
passage (approved March 31, 1960). 

263 



§ 91-9-303 Trusts and Estates 

Cross References — Trusts to promote arts and sciences, see §§ 39-9-1 et seq. 
The management of trust property generally, see § 91-13-1. 

JUDICIAL DECISIONS 

1. In general. mine that there is "deep seated disagree- 

Code 1942, §§ 1273-01 and 1273-02 ment", and which permit the court to 

which authorize a majority of the benefi- appoint trustees, were violative of the 

ciaries of a religious trust to take over and religious liberty clauses of the Mississippi 

divest the mother church of church prop- and federal constitutions. Sustar v. Wil- 

erty without regard to the habendum hams, 263 So. 2d 537 (Miss. 1972). 
clause of the deed, if a court should deter- 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 1, 2. CJS. 89 C.J.S., Trusts §§ 1 et seq. 

§ 91-9-303. Proceedings for removal of trustees and appoint- 
ment of successor. 

When a majority of the local beneficiaries of any educational, charitable, or 
religious trust (all as hereinabove defined) shall determine that there exists a 
deep-seated and irreconcilable hostility or tension between them and any or all 
of the trustees or others in authority exercising control over the administration 
of such trust, then, and in such events, said majority of the local beneficiaries 
may file a bill of complaint in the chancery court of the county wherein any part 
of the corpus of said trust is situated, setting forth the grounds for relief as 
stated herein and praying for a decree of the court discharging all existing 
trustees and all others in authority exercising control over the administration 
of such trust (by whatever name designated) and for the appointment of other 
trustees who shall, upon their appointment and qualification in conformity 
with the terms of the decree of the chancery court, thereupon become vested 
with complete control and authority over the corpus of said trust. All successor- 
trustees so appointed and qualified shall be citizens of the State of Mississippi, 
residing within the jurisdiction of the court appointing them, and shall be local 
beneficiaries as defined in subsection (b) of Section 91-9-301. However, before 
entering a decree removing the existing trustees and all others in authority 
exercising control over the administration of such trust and appointing 
successor- trustees, the chancery court shall first find affirmatively that the 
conditions set forth in this section as alleged in the bill of complaint actually 
exist. The acting trustees and all others in authority with respect to said trust 
shall be made parties defendant to the bill of complaint, shall be summoned in 
the manner provided by law, and shall be afforded every statutory right to 
plead, answer, or demur to the bill of complaint exhibited against them, and to 
appear and be heard in opposition thereto. 

SOURCES: Codes, 1942, § 1273-02; Laws, 1960, ch. 221, § 2, from and after 
passage (approved March 31, 1960). 



264 



Trusts and Trustees § 91-9-305 

JUDICIAL DECISIONS 

1. In general. divest the mother church of church prop- 
Hostility of the trustee toward the sue- erty without regard to the habendum 
cessor income beneficiary could defeat the clause of the deed, if a court should deter- 
purpose of the trust and, therefore, might mine that there is "deep seated disagree- 
provide a sufficient ground for the re- ment", and which permit the court to 
moval of the trustee. Walker v. Cox, 531 appoint trustees, were violative of the 
So. 2d 801 (Miss. 1988). religious liberty clauses of the Mississippi 
Code 1942, §§ 1273-01 and 1273-02 and federal constitutions. Sustar v. Wil- 
which authorize a majority of the benefi- Hams, 263 So. 2d 537 (Miss. 1972). 
ciaries of a religious trust to take over and 

RESEARCH REFERENCES 

ALR. Hostility between trustee and Am Jur. 76 Am. Jur. 2d, Trusts § 261. 

beneficiary as ground for removal. 63 19 Am. Jur. Proof of Facts 2d 45, Trust- 

A.L.R.2d 523. ee's Representation that it Possessed Ex- 
Standard of care required of trustee pert Knowledge or Skill. 

representing itself to have expert knowl- CJS. 90 C.J.S., Trusts §§ 306 et seq. 

edge or skill. 91 A.L.R.3d 904. 

§ 91-9-305. Powers of court in removal proceedings. 

In any proceeding brought under the provisions of this article, the 
chancery court having jurisdiction of the same shall be clothed with the full 
powers of a court of equity, competent to adjudicate any and all matters 
incidental or collateral to the principal cause, including, but not limited to, the 
preservation of all liens. 

SOURCES: Codes, 1942, § 1273-03; Laws, 1960, ch. 221, § 3, eff from and after 
passage (approved March 31, 1960). 

Cross References — Jurisdiction of chancery court in general, see § 9-5-81. 

RESEARCH REFERENCES 

Am Jur. 76 Am. Jur. 2d, Trusts §§ 257 CJS. 90 C.J.S., Trusts §§ 306 et seq. 
et seq. 

Article 9. 

Administration of Private Foundation Trusts, Charitable Trusts, and Split- 
Interest Trusts. 

Sec. 

91-9-401. Prohibited acts. 

91-9-403. Distribution of amounts to avoid tax liability. 

91-9-405. Applicability of Sections 91-9-401 and 91-9-403 when contrary to trust 

instrument. 
91-9-407. Amendment of trust instrument to exclude application of Sections 

91-9-401 and 91-9-403. 
91-9-409. Rights and powers of courts and attorney general. 

91-9-411. References to United States Internal Revenue Code. 

265 



§ 91-9-401 Trusts and Estates 

§ 91-9-401. Prohibited acts. 

In the administration of any trust which is a "private foundation," as 
denned in Section 509 of the United States Internal Revenue Code, a 
"charitable trust," as denned in Section 4947(a)(1) of the United States 
Internal Revenue Code, or a "split-interest trust," as denned in Section 
4947(a)(2) of the United States Internal Revenue Code, the following acts shall 
be prohibited: 

(a) Engaging in any act of "self-dealing," as denned in Section 4941(d) of 
the United States Internal Revenue Code, which would give rise to any 
liability for the tax imposed by Section 4941(a) of the United States Internal 
Revenue Code; 

(b) Retaining any "excess business holdings," as defined in Section 
4943(c) of the United States Internal Revenue Code, which would give rise to 
any liability for the tax imposed by Section 4943(a) of the United States 
Internal Revenue Code; 

(c) Making any investments which would jeopardize the carrying out of 
any of the exempt purposes of the trust, within the meaning of Section 4944 
of the United States Internal Revenue Code, so as to give rise to any liability 
for the tax imposed by Section 4944(a) of the United States Internal Revenue 
Code; and 

(d) Making any "taxable expenditures," as defined in Section 4945(d) of 
the United States Internal Revenue Code, which would give rise to any 
liability for the tax imposed by Section 4945(a) of the United States Internal 
Revenue Code. 

This section shall not apply either to those split-interest trusts or to 
amounts thereof which are not subject to the prohibitions applicable to 
private foundations by reason of the provisions of Section 4947 of the United 
States Internal Revenue Code. 

SOURCES: Codes, 1942, § 672-201; Laws, 1972, ch. 423, § 1, eff from and after 
passage (approved April 28, 1972). 

Editor's Note — Laws, 1972, ch. 423 § 6, provides as follows: 

"SECTION 6. Because the requirements of the Federal Tax Reform Act of 1969 
require charitable nonprofit foundations, whether trusts or corporations, to change 
their governing instruments to comply with said federal act or the state to adopt 
legislation which complies in lieu of each trust or corporation changing its instrument 
and because failure to comply by the deadline set in said federal act will result in the 
loss of tax exemption by such trusts and corporations, the immediate effectiveness of 
this act is necessary to relieve nonprofit corporations and trusts of the concern about 
changing their governing instruments and retaining the tax exempt status for such 
Mississippi organizations; therefore, this act shall take effect and be in force from and 
after its passage." 

Cross References — Similar provisions applicable to private foundations, see 
§ 79-11-51. 

Federal Aspects — Sections 509, 4941, 4943, 4944, 4945, and 4947 of the United 
States Internal Revenue Code, referred to in this section, can be found codified at 26 
USCS §§ 509, 4941, 4943 through 4945, and 4947. 

266 



Trusts and Trustees § 91-9-407 

RESEARCH REFERENCES 

ALR. Enforceability of contractual particular books or writings. 34 A.L.R.4th 

right, in which fiduciary has interest, to 419. 

purchase property of estate or trust. 6 Am Jur. 34 Am. Jur. 2d, Federal Taxa- 

A.L.R.4th 786. tion f 8047. 

Validity, as for a charitable purpose, of 
trust for publication or distribution of 

§ 91-9-403. Distribution of amounts to avoid tax liability. 

In the administration of any trust which is a "private foundation," as 
denned in Section 509 of the United States Internal Revenue Code, or which is 
a "charitable trust," as denned in Section 4947(a)(1) of the United States 
Internal Revenue Code, there shall be distributed, for the purposes specified in 
the trust instrument, for each taxable year, amounts at least sufficient to avoid 
liability for the tax imposed by Section 4942(a) of the United States Internal 
Revenue Code. 

SOURCES: Codes, 1942, § 672-202; Laws, 1972, ch. 423, § 2, eff from and after 
passage (approved April 28, 1972). 

Cross References — Similar provisions applicable to private foundations, see 
§ 79-11-53. 

Federal Aspects — Sections 509, 4942(a), and 4947(a)(1) of the United States 
Internal Revenue Code, referred to in this section, can be found codified at 26 USCS 
§§ 509, 4942(a), and 4947(a)(1). 

§ 91-9-405. Applicability of Sections 91-9-401 and 91-9-403 
when contrary to trust instrument. 

The provisions of Sections 91-9-401 and 91-9-403 shall not apply to any 
trust to the extent that a court of competent jurisdiction shall determine that 
such application would be contrary to the terms of the instrument governing 
such trust and that the same may not properly be changed to conform to such 
sections. The trustee shall not be held liable to anyone for any payments made 
under Section 91-9-403 prior to such determination. 

SOURCES: Codes, 1942, § 672-203; Laws, 1972, ch. 423, § 3, eff from and after 
passage (approved April 28, 1972). 

Cross References — Similar provisions applicable to private foundations, see 
§ 79-11-55. 

§ 91-9-407. Amendment of trust instrument to exclude appli- 
cation of Sections 91-9-401 and 91-9-403. 

The trustees of any trust which is a "private foundation" (as defined in 
Section 509 of the United States Internal Revenue Code), a "charitable trust" 
(as defined in Section 4947(a)(1) of the United States Internal Revenue Code) 
or a "split-interest trust" (as defined in Section 4947(a)(2) of the United States 

267 



§ 91-9-409 Trusts and Estates 

Internal Revenue Code) may, without judicial proceedings, amend the govern- 
ing instrument of such trust expressly to exclude the application of Sections 
91-9-401 and 91-9-403, or any portion thereof, by executing a written amend- 
ment to such trust and filing a duplicate original of such amendment with the 
secretary of state of the State of Mississippi, whereupon such section or 
sections, or any portion thereof, as the case may be, shall not apply to such 
trust. Neither the trustees nor the trust shall be liable to anyone for any 
payments made under Section 91-9-403 prior to such amendment. 

SOURCES: Codes, 1942, § 672-203; Laws, 1972, ch. 423, § 3, eff from and after 
passage (approved April 28, 1972). 

Cross References — Similar provisions applicable to private foundations, see 
§ 79-11-57. 

Federal Aspects — Sections 509 and 4947 of the United States Internal Revenue 
Code, referred to in this section, can be found codified at 26 USCS §§ 509 and 4947. 

§ 91-9-409. Rights and powers of courts and attorney general. 

Nothing in Sections 91-9-401 through 91-9-411 shall impair the rights and 
powers of the courts or the attorney general of this state with respect to any 
trust. 

SOURCES: Codes, 1942, § 672-204; Laws, 1972, ch. 423, § 4, eff from and after 
passage (approved April 28, 1972). 

Cross References — Similar provisions applicable to private foundations, see 
§ 79-11-59. 

§ 91-9-411. References to United States Internal Revenue 
Code. 

All references to sections of the United States Internal Revenue Code shall 
be to such law as it exists as of April 28, 1972. 

SOURCES: Codes, 1942, § 672-205; Laws, 1972, ch. 423, § 5, eff from and after 
passage (approved April 28, 1972). 

Article 11. 
Family Trust Preservation Act of 1998. 

Sec. 

91-9-501. Definitions. 

91-9-503. Beneficiary's interests not subject to transfer; restrictions on transfers 

and enforcements of money judgments. 

91-9-505. Trust monies designated for education or support of beneficiary; restric- 

tions on transfers and enforcements of money judgments. 

91-9-507. Trust monies designated for payments in trustee's discretion; restric- 

tions and liability on payments to transferees or creditors; beneficiary's 
right to compel payments by trustee. 

268 



Trusts and Trustees § 91-9-503 

91-9-509. Settlor as beneficiary of own trust; invalid restraint on transfers; 

payments for education or support at trustee's discretion; maximum 

amount accessible by transferees or creditors. 
91-9-511. Application of act; date of trust creation. 

§ 91-9-501. Definitions. 

The following words and phrases shall have the meanings ascribed herein 
unless the context clearly indicates otherwise: 

(a) "Trust" means the following: 

(i) An express trust, private or charitable, with additions thereto, 
wherever and however created; or 

(ii) A trust created or determined by a judgment or decree under 
which the trust is to be administered in the manner of an express trust. 

(b) "Trust" excludes the following: 

(i) Constructive trusts, other than those described in paragraph (a)(ii) 
of this section, and resulting trusts; 

(ii) Guardianships and conservatorships; 

(hi) Executors and administrators of decedent's estates; 

(iv) Totten trust accounts; 

(v) Custodial arrangements pursuant to the Uniform Gifts to Minors 
Act or the Uniform Transfers to Minors Act of any state; 

(vi) Business trusts that are taxed as partnerships or corporations; 

(vii) Investment trusts subject to regulation under the laws of this 
state or any other jurisdiction; 

(viii) Common trust funds; 

(ix) Voting trusts; 

(x) Security arrangements; 

(xi) Transfers in trust for purpose of suit or enforcement of a claim of 
right; 

(xii) Liquidation trusts; or 

(xiii) Any arrangement under which a person is nominee or escrowee 
for another. 

(c) "Trustee" means an original, additional, or successor trustee, 
whether or not appointed or confirmed by a court. 

(d) "Trust instrument" means a written instrument which creates, 
defines or determines a trust, including, but not limited to, a last will and 
testament of a decedent. 

SOURCES: Laws, 1998, ch. 460, § 1, eff from and after passage (approved 
March 23, 1998). 

§ 91-9-503. Beneficiary's interests not subject to transfer; re- 
strictions on transfers and enforcements of money judg- 
ments. 

Except as provided in Section 91-9-509, if the trust instrument provides 
that a beneficiary's interest in income or principal or both of a trust is not 
subject to voluntary or involuntary transfer, the beneficiary's interest in 

269 



§ 91-9-505 Trusts and Estates 

income or principal or both under the trust may not be transferred and is not 
subject to the enforcement of a money judgment until paid to the beneficiary. 

SOURCES: Laws, 1998, ch. 460, § 2, eff from and after passage (approved 
March 23, 1998). 

§ 91-9-505. Trust monies designated for education or support 
of beneficiary; restrictions on transfers and enforcements of 
money judgments. 

Except as provided in Section 91-9-509, if the trust instrument provides 
that the trustee shall pay income or principal or both of a trust for the 
education or support of a beneficiary, the beneficiary's interest in income or 
principal or both under the trust, to the extent the income or principal or both 
is necessary for the education or support of the beneficiary, may not be 
transferred and is not subject to the enforcement of a money judgment until 
paid to the beneficiary. This section shall not be applied or construed to limit 
or otherwise diminish a restraint on transfer that is valid under Section 
91-9-503. 

SOURCES: Laws, 1998, ch. 460, § 3, eff from and after passage (approved 
March 23, 1998). 

§ 91-9-507. Trust monies designated for payments in trustee's 
discretion; restrictions and liability on payments to trans- 
ferees or creditors; beneficiary's right to compel payments 
by trustee. 

(1) Except as provided in Section 91-9-509, if the trust instrument 
provides that the trustee shall pay to or for the benefit of a beneficiary so much 
of the income or principal or both of a trust as the trustee in the trustee's 
discretion sees fit to pay, a transferee or creditor of the beneficiary may not 
compel the trustee to pay any amount from the trust that may be paid only in 
the exercise of the trustee's discretion. This subsection shall not be applied or 
construed to limit or otherwise diminish a restraint on transfer that is valid 
under Section 91-9-503. 

(2) If the trustee has knowledge of a transfer of a beneficiary's interest in 
a trust or has been served with process in a proceeding for garnishment or 
attachment or the like by a judgment creditor seeking to reach a beneficiary's 
interest in a trust, and the trustee pays to or for the benefit of the beneficiary 
any part of the income or principal of the trust that may be paid only in the 
exercise of the trustee's discretion, the trustee is liable to the transferee or 
creditor to the extent that the payment to or for the benefit of the beneficiary 
impairs the right of the transferee or creditor. This subsection does not apply 
if the beneficiary's interest in the trust is subject to a restraint on transfer that 
is valid under Section 91-9-503. 

(3) This section applies regardless of whether the trust instrument 
provides a standard for the exercise of the trustee's discretion. 

270 



Trusts and Trustees § 91-9-511 

(4) Nothing in this section limits any right the beneficiary may have to 
compel the trustee to pay to or for the benefit of the beneficiary all or part of 
the income or principal of a trust. 

SOURCES: Laws, 1998, ch. 460, § 4, eff from and after passage (approved 
March 23, 1998). 

§ 91-9-509. Settlor as beneficiary of own trust; invalid re- 
straint on transfers; payments for education or support at 
trustee's discretion; maximum amount accessible by trans- 
ferees or creditors. 

(1) If the settlor is a beneficiary of a trust created by the settlor and the 
settlor's interest in the trust is subject to a provision restraining the voluntary 
or involuntary transfer of the settlor's interest, the restraint is invalid against 
transferees or creditors of the settlor. The invalidity of the restraint on transfer 
does not affect the validity of the trust. 

(2) If the settlor is the beneficiary of a trust created by the settlor and the 
trust instrument provides that the trustee shall pay income or principal or 
both of the trust for the education or support of the beneficiary or gives the 
trustee discretion to determine the amount of income or principal or both of the 
trust to be paid to or for the benefit of the settlor, a transferee or creditor of the 
settlor may reach the maximum amount of the trust that the trustee could pay 
to or for the benefit of the settlor under the trust instrument, not exceeding the 
amount of the settlor's proportionate contribution to the trust. 

SOURCES: Laws, 1998, ch. 460, § 5, eff from and after passage (approved 
March 23, 1998). 

§ 91-9-511. Application of act; date of trust creation. 

Sections 91-9-501 through 91-9-511 shall apply to trusts created, defined 
or determined in trust instruments executed at any time whether before, on or 
after March 23, 1998. 

SOURCES: Laws, 1998, ch. 460, § 6, eff. from and after passage (approved 
March 23, 1998). 



271 



CHAPTER 11 
Fiduciary Security Transfers 



Sec. 




91-11-1. 


Citation of chapter. 


91-11-3. 


Definitions. 


91-11-5. 


Registration in name of fiduciary. 


91-11-7. 


Assignment by fiduciary. 


91-11-9. 


Evidence of appointment or incumbency. 


91-11-11. 


Adverse claims. 


91-11-13. 


Non-liability of corporation and transfer agent. 


91-11-15. 


Non-liability of third persons. 


91-11-17. 


Territorial application. 


91-11-19. 


Tax o